People v. Johnson

65 Mich. App. 290 (1975) 237 N.W.2d 295

PEOPLE
v.
JOHNSON

Docket No. 21745.

Michigan Court of Appeals.

Decided October 28, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and E. Frederick Davison, Assistant Prosecuting Attorney, for the people.

Brignall, DeVries & Lamb, P.C., for defendant.

Before: N.J. KAUFMAN, P.J., and R.B. BURNS and DENEWETH,^[*] JJ.

R.B. BURNS, J.

Van Ray Johnson was convicted in November, 1972, of larceny in a building. MCLA 750.360; MSA 28.592. He appealed, and the Court of Appeals reversed. Defendant Johnson was retried in June, 1974, and convicted by a jury. We affirm.

The offense involved defendant's removal of a stereo unit from Bursma Radio Supply in Kalamazoo, Michigan. A statement allegedly made by defendant after his arrest to an Officer Dolfman was held admissible, as voluntary, at a Walker^[1] hearing. Essentially, this statement expresses defendant's contention that he thought that the subject stereo had just been bought by a friend, Leo Durden, who was in the store and who requested defendant's assistance in carrying his purchases to his car. As testified to at trial by Officer Dolfman:

"Mr. Johnson told me he was at the store and he took a stereo or tuner out for a friend of his who told him to remove it, put it in the car as his friend had bought it, and he started to take it out of the store and somebody yelled at him, he got scared and then he started running."

In the testimony of Leo Durden:

"I didn't point exactly, didn't tell him, just made a gesture, and he picked up the wrong thing, and I heard somebody say, `Hey, hey,' and I turned around and looked and Mr. Johnson came running out of the store and I hollered, `Say, man, what's happening?' And I seen he had picked up the wrong thing."

Defendant did not testify in his own behalf. The jury apparently rejected the theory that defendant's removal of the stereo was inadvertent. His appeal contains six allegations of procedural error.

Defendant renews on appeal his contention that the trial court committed reversible error by not suppressing at the Walker hearing defendant's alleged statement to Officer Dolfman. The proper standard for our review is clearly stated in People v McGillen # 1, 392 Mich. 251, 257; 220 NW2d 677, 679 (1974):

"As this Court stated in People v Robinson, 386 Mich. 551, 557; 194 NW2d 709 (1972), `the sole purpose of the Walker hearing is to determine the fact of voluntariness and a reviewing court is concerned only with the correctness of that determination. * * * "On this appeal we are required to `examine the whole record and make an independent determination of the ultimate issue of voluntariness.'"'

"If after such a review we do not possess a definite and firm conviction that a mistake was committed by the trial judge in his ruling, we will affirm that ruling. People v Hummel, 19 Mich. App. 266; 172 NW2d 550 (1969)."

We cannot entertain such a "definite and firm conviction" in this instance. We note defendant's statement at the Walker hearing that "we just started rapping", and concur with the trial judge's observation that the exculpatory nature of the statement lends credence to its voluntariness. The decision not to suppress is not reversible error.

Defendant further alleges a denial of due process and of a fair trial by the prosecutor's failure to endorse and produce certain res gestae witnesses. The allegation gains a certain viability by some seemingly imprecise police work in this case.

Among the initial investigating officers on the scene after defendant's arrest were an Officer Glover and an Officer Cantu. Officer Glover made notations as to the identities of all of those who professed their presence in Bursma Radio Supply during the incident. Officer Glover then informed an Officer Brigman of these identities, and the latter officer continued the investigation. Officer Glover subsequently threw his notes away. The follow-up investigation of the case was conducted by Officer Dolfman, who apparently communicated with neither Officer Glover nor Officer Brigman.

These facts were revealed at an evidentiary hearing undertaken during the course of trial initiated by defendant's motion to dismiss for failure to endorse. Prior testimony had revealed significant confusion as to the possible presence of unendorsed customers in the store at the time of the incident. Employee Trover testified as to his recollection that there was a couple standing at the counter, and that there was a lone black man in the vicinity of defendant. Officer Brigman could not remember talking to any customers. Employee Murray testified at one point that there were "one or two" customers at the counter, but later qualified this testimony in stating that "I vaguely remember about two people in the store before I was attracted by the shout". At the end of this evidentiary hearing the trial judge exercised his discretionary authority to permit the late endorsement of witnesses, People v Blue, 255 Mich. 675; 239 N.W. 361 (1931), People v Hodges, 34 Mich. App. 90; 190 NW2d 703 (1971), and Officers Glover and Cantu and Leo Durden (the other man observed by Mr. Trover) were endorsed.

It is settled that the prosecutor must endorse and produce all known res gestae witnesses. MCLA 767.40; MSA 28.980, People v Harrison, 44 Mich. App. 578; 205 NW2d 900 (1973). In denying the motion to dismiss, the trial court concluded in its discretion that the prosecution's endorsement activities did not involve either gross negligence or voluntary suppression, and thus did not require dismissal. We will only reverse when this determination classifies as an abuse of the trial court's discretion, "with the burden ordinarily on the party asserting the abuse". People v Lakin, 30 Mich. App. 441, 444; 186 NW2d 867, 868 (1971).

Recalling that the primary purpose of the endorsement statute is to protect against selective investigation, People v Raider, 256 Mich. 131; 239 N.W. 387 (1931), we cannot hold that this regrettably confused investigation is sufficiently infirm as to require our reversal of the trial judge's determination. We further note the judge's cautionary instruction to the jury that if the prosecutor was shown not to have produced all eyewitnesses, the jury could infer that their testimony would have been unfavorable to the prosecution. We affirm as to the issue of endorsement.

We have thoroughly reviewed defendant's four other assignments of error and find them to be without merit. The decision is affirmed.

NOTES

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

[1] People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).