author: Per Curiam.

text:
    PEOPLE v MASON
    Docket No. 77-3695.
    Submitted October 2, 1979, at Detroit.
    Decided March 5, 1980.
    Michael Mason was convicted of carrying a concealed weapon, possession of heroin, and possession of a firearm during the commission of a felony, Recorder’s Court of Detroit, Robert L. Evans, J. Defendant appeals, alleging that the removal of a juror by the trial court was an abuse of discretion, that the prosecutor failed to establish that the weapon used was operable and that the trial court therefore improperly denied the defendant’s motion for a directed verdict of acquittal on the felony-firearm charge, and that the trial court should have instructed the jury that failure of the prosecution to produce a res gestae witness should lead to a presumption that the witness’s testimony would have been unfavorable to the prosecution. Held:

    1. One of the 13 empanelled jurors manifested friendliness and goodwill toward the defendant, and, following a meeting in chambers with all counsel and the juror present, the trial court concluded that the juror was potentially prejudiced. The jury was reduced to 12 by the removal of this juror rather than by the usual method of choosing by lot. Under these circumstances there was no abuse of discretion.
    2. The prosecutor was not required to prove operability of a firearm in order to establish a prima facie case in a felony-firearm prosecution, sufficient to survive the defendant’s request for a directed verdict. In this case the prosecutor did present evidence that the firearms involved were apparently in working order. Denial of the defendant’s motion was proper.
    3. The trial court found that the prosecutor had used due diligence to secure the missing res gestae witness. This finding was an abuse of discretion; the prosecutor had notice of the trial date ten months in advance, yet took no steps to insure the presence of the witness at trial until just before trial and the witness could not then be located. The error, however, was harmless because the testimony of the witness would have been merely cumulative.

      References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 18.
    5 Am Jur 2d, Appeal and Error §§ 772, 774.
    [2] 79 Am Jur 2d, Weapons and Firearms § 16.
    [3] 29 Am Jur 2d, Evidence § 180.

      Affirmed.
    1. Jury — Trial — Removal of Juror.
    The decision of a trial court to remove a juror will be reversed only upon a finding of a clear abuse of discretion.
    2. Criminal Law — Felony-Firearm Statute — Firearms — Operability of Firearm.
    A prosecutor need not present proof of the operability of a firearm as an element of the prima facie case in a felony-firearm prosecution; evidence of the operability of a firearm may have to be presented where a defendant raises the issue of whether a particular weapon is operable, but no such evidence is necessary in order for the prosecutor’s case to survive a defendant’s request for a directed verdict of acquittal.
    3. Witnesses — Res Gestae Witnesses — Prosecutors — Due Diligence.
    The prosecutor has the duty to indorse all known res gestae witnesses and to use due diligence in producing them at trial.-
    4. Witnesses — Res Gestae Witnesses — Due Diligence — Cumulative Testimony.
    A finding that a prosecutor failed to exercise due diligence to produce a res gestae witness does not automatically require reversal of a defendant’s conviction; production of a res gestae witness may be excused where the witness’s testimony would be merely cumulative.

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

      Charles Alpert, for defendant on appeal.
    Before: T. M. Burns, P.J., and Bronson and R. M. Maher, JJ.
   Per Curiam.

Defendant was convicted by a jury of the crimes of carrying a concealed weapon, MCL 750.227; MSA 28.424, possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to a prison term of six months to five years on the concealed weapon charge, a term of one to four years on the possession of heroin charge and a term of two years for the felony-firearm charge. He appeals as of right, raising three issues.

First, defendant contends that the trial court erred in improperly excluding a juror during the course of the trial.

In the instant case a jury of 13 was impaneled pursuant to authority granted under MCL 768.18; MSA 28.1041. The record indicates that on the third day of trial, a juror, Betty Love, entered the courtroom, approached defendant and his grandmother, shook their hands and said, "Good morning” and "God bless you”. This incident was brought to the court’s attention by the prosecutor. The court conducted a meeting in chambers on this matter at which counsel for all parties were present along with the juror in question. Following this meeting, the court concluded that the juror was potentially prejudiced and should be removed from the panel. At the close of the case the jury was reduced in number to 12 by the removal of this juror rather than by drawing lots as is the usual procedure. These remaining jurors entered a verdict of guilty against the defendant on all counts.

The defendant argues that the removal of the juror was arbitrary and constituted an abuse of discretion. We disagree.

The trial court is in the best position to investígate and pass upon a juror’s qualifications and the court’s decision to remove a juror will be reversed only upon a finding of clear abuse of discretion. People v Clyburn, 55 Mich App 454; 222 NW2d 775 (1974). In this case the judge questioned the juror in the presence of counsel for all parties and concluded that the juror was potentially prejudiced. Clearly this is a ground for removal. GCR 1963, 511.4(4). It was implicit in the record that the removal was based on the juror’s manifestations of friendliness and goodwill toward the defendant. Further there was the possibility that the juror might harbor some resentment against the prosecutor for bringing the incident to the court’s attention. Under these circumstances we find no abuse of discretion on the part of the trial court in removing this juror.

Additionally, defendant’s contention that the reduction of the jury panel to 12 members by the removal of this juror violated his right to have a jury chosen by lot is without merit. The procedure followed by the trial court was proper. People v Van Camp, 356 Mich 593; 97 NW2d 726 (1959).

Defendant next argues that the trial court erred in denying his motion for a directed verdict on the charge of possession of a firearm during the commission of a felony. Specifically, defendant contends that the prosecutor failed to establish that the weapon used by defendant was in operable condition.

A "firearm” is defined in MCL 8.3t; MSA 2.212(20) as follows:

"The word 'firearm’, except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB’s not exceeding .177 calibre by means of spring, gas or air.”

We agree with the position taken in People v Gibson, 94 Mich App 172; 288 NW2d 366 (1979), that the prosecutor need not present proof of operability as an element of the prima facie case in a felony-firearm prosecution. To hold otherwise could prevent prosecution under the statute in cases where the weapon is not recovered, even though the victim testifies to its existence. Additionally, as was noted in Gibson, "[á] contrary requirement would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur”. People v Gibson, supra, 177.

In cases where the defendant raises the issue of whether a particular weapon is operable, and, as such, a "firearm” under the statute, the prosecution may have to present evidence on operability to convince the trier of fact that an operable "firearm” was actually present. In order to survive a request for a directed verdict, however, no such evidence is needed. In the instant case, while the prosecution was under no duty to present evidence of the gun’s operability, it did establish that certain .22-caliber revolvers used in the commission of the charged felony possessed the necessary firing mechanisms and were in apparent working order. This showing went far beyond what was necessary to establish a prima facie case, and the trial court’s denial of defendant’s motion for a directed verdict was, accordingly, proper.

Defendant’s final claim of error is that the trial court improperly refused to charge the jury that the failure of the prosecution to produce at trial a missing res gestae witness should lead to a presumption that the testimony of this witness would have been unfavorable to the prosecution.

The absent witness was a police officer, Sergeant Slegianes. The officer, acting in the course of his official duties, performed a series of preliminary tests on suspected heroin seized from the defendant and constituted part of the chain of custody for this heroin. The record indicates that the officer would have testified that these preliminary tests failed to establish that the substance seized from defendant was in fact heroin. The defendant contends the court’s failure to give the requested instructions constituted reversible error. We disagree.

The prosecutor has the duty to endorse all known res gestae witnesses and to use due diligence in producing them at trial. People v Crable, 33 Mich App 254; 189 NW2d 740 (1971). In the instant case, the court failed to give timely notice of the date of trial to the people’s witnesses. The record reflects that upon receiving notice of the trial date the prosecutor made efforts to locate Officer Slegianes and to secure his presence at trial. These efforts were unavailing. Prior to trial, the officer began an extended vacation in the Upper Peninsula of this state and could not be located in time to attend the trial. The court excused the nonproduction of this witness, finding the prosecutor had used "due diligence” to secure his presence. It concluded that the failure to produce the witness was the result of negligence on the part of the court system and was not the fault of the prosecutor.

We find that the court’s conclusion that the prosecutor exercised due diligence in securing the presence of this witness was error.

The responsibility for the production of the witness was the prosecutor’s and it could not be shifted to the trial court. The fact that the court failed to give timely notice did not affect the prosecutor’s primary responsibility in this regard. The record indicates that the prosecutor had notice of the trial date ten months prior to the time of trial. Notwithstanding this, he failed to take steps to insure the production of the witness at trial until it was too late. Under these circumstances, the trial court’s finding of due diligence on the part of the prosecutor amounted to an abuse of discretion.

Our finding that the prosecutor failed to exercise due diligence to produce this res gestae witness does not automatically require a reversal. Production of such a witness is not required where the testimony would be merely cumulative. People v Hendrix, 81 Mich App 33; 264 NW2d 108 (1978).

In this case the testimony of Officer Slegianes would have been superfluous. At trial, the defendant benefited from the testimony of another police officer, Sergeant Morrison, who testified that he had personal knowledge that the initial tests on the substance seized from the defendant failed to establish that it was heroin. Since this testimony was substantially the same as that expected from Officer Slegianes, it cannot be said that the failure to produce the witness was prejudicial to the defendant’s case. Additionally, the significance of the testimony concerning the results of the initial tests was diminished by the fact that an expert witness testified that later testing revealed the substance was, in fact, heroin.

Defendant also asserted that the missing witness was essential to establish a chain of custody for the heroin. We feel that the testimony of Sergeant Slegianes on this point would have been, again, merely cumulative. At trial, Sergeant Morrison and the expert witnesses who testified concerning this heroin sufficiently identified it as being the same substance that had been seized from the defendant. Particularly they testified to the receipt, testing and storage of the substance and in this way established a chain of custody.

We conclude that the failure of the prosecution to produce this res gestae witness was harmless error.

Affirmed.

       Contrary to the prosecution’s assertion, this issue is properly raised on appeal. The court heard evidence on this issue and found that the prosecution had exercised due diligence. In such a case, the issue is preserved for appeal even absent a motion for a new trial. People v Biondo, 89 Mich App 96; 279 NW2d 330 (1979).


source: Caselaw Access Project

author: Per Curiam. M. J. Kelly, P.J.

license: Public Domain

text:
    PEOPLE v EVANS
    Docket No. 78-945.
    Submitted September 4, 1979, at Lansing.
    Decided March 5, 1980.
    David Evans was convicted of delivery of heroin, Washtenaw Circuit Court, Patrick J. Conlin, J. The defendant appeals, alleging 1) that evidence of a defendant’s prior convictions should be excluded in all circumstances, and 2) that the trial court erred in taking under advisement until after the defendant testified the defendant’s motion to exclude evidence of the defendant’s prior convictions. Held:

    1. The defendant’s first claim has no support in Michigan law.
    2. By taking the defendant’s motion under advisement until the defendant decided to take the stand, the trial court improperly failed to exercise its discretion. This error was not harmless under the circumstances.
    Reversed and remanded.
    M. J. Kelly, P.J., dissented. He would hold that the defendant had a fair trial, that the defendant was properly convicted by a jury, that the error was harmless and that there was no manifest injustice. He would affirm.
    Opinion of the Court
    1. Criminal Law — Evidence — Prior Convictions — Impeachment — Discretion — Considerations.
    A trial judge, when requested, must exercise his discretion in determining whether to exclude reference to a prior conviction record by considering the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify from fear of impeachment.
    References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 320 et seq.

    81 Am Jur 2d, Witnesses §§ 525, 582.
    [2] 5 Am Jur 2d, Appeal and Error §§ 807, 809.

      Dissent by M. J. Kelly, P. J.
    2. Criminal Law — Appeal and Error — Evidence — Instructions to Jury.

      Any error which may have occurred when a witness, who was testifying on behalf of a defendant at the defendant’s trial for delivery of heroin, mentioned on cross-examination that the defendant had previously been engaged in the delivery of heroin was harmless where the trial court gave a limiting instruction that that cross-examination testimony was not to be considered as evidence of the defendant’s guilt or innocence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and John W. Stanowski, Assistant Prosecuting Attorney, for the people.

      Robert E. Helm, for defendant on appeal.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and Cynar, JJ.
   Per Curiam.

Initially, the claim is asserted that evidence of a defendant’s prior convictions should be excluded in all circumstances. We reject this contention for the reason that there is no supporting authority in the State of Michigan.

It is next urged that the trial court erred in taking under advisement defendant’s motion to exclude evidence of his prior convictions until after defendant testified. Specifically, the trial court stated:

"You can use it if, at the end of his testimony, I deem it necessary, or, in other words, if it has probative value relating to veracity. In other words, if I think, after his testimony, there is a reason to go into it because he may not be telling the truth and the jury should consider that, at that time, we will approach the bench and go into it at that time.”

The trial court’s awareness of the need to balance the probative value of the testimony against the prejudice to the defendant was of little avail to the defendant in this instance because, by taking the request to exclude under advisement, the trial court effectively failed to exercise its discretion. See People v McCartney, 60 Mich App 620, 624; 231 NW2d 472 (1975), and People v Jones, 92 Mich App 100; 284 NW2d 501 (1979).

The similarity of the crimes, the failure of the defendant to take the stand, and the importance of the defendant’s testimony to his defense coupled with the elicitation through another witness of defendant’s prior record, including prior dealings and arrests, persuades us that this error cannot be termed harmless.

Accordingly, we reverse and remand for a new trial.

M. J. Kelly, P.J.

(dissenting). I agree with the majority on all save the question of harmless error. At the time of defendant’s arrest he had in his possession 29 $50 packets of heroin. The defense called as its only witness Robert Evans, the brother of the defendant, who testified that defendant was with him and:

"I know when he is with me, he is not into nothing else.

"Q. [By the prosecuting attorney on cross-examination], What do you mean by that?

"A Like what he’s into now.

"Q. Delivery of heroin?

"A Yes.

"Q. He has dope this before?

"A. Yes.”

Upon request the court gave a limiting instruction that that cross-examination testimony was not to be considered as evidence of defendant’s guilt or innocence.

I am convinced that defendant had a fair trial, that he was properly jury-convicted, that the error was harmless and that there was no manifest injustice.

I would affirm.


text:
    FLINN v SUN OIL COMPANY
    Docket No. 78-2708.
    Submitted January 7, 1980, at Detroit.
    Decided March 5, 1980.
    Leave to appeal applied for.
    Robert Flinn was killed by an explosion of propane gas. Dorothy A. Flinn, as administratrix of his estate, brought a breach of warranty action against Sun Oil Company and Karl Roland, who were the manufacturer and supplier of the gas. A jury returned a verdict of no cause of action in favor of defendants. Judgment for defendants, Wayne Circuit Court, Joseph G. Rashid, J. Plaintiff appeals. On appeal, plaintiff alleges that the trial court’s denial of her motion for a mistrial and refusal to give a requested cautionary instruction after defense counsel’s closing argument were reversible error, that error was committed by failing to give a cautionary instruction "that there is no necessity for any showing of fault on behalf of Sun Oil Company”, that the trial court committed other instructional error and abused its discretion in denying plaintiff’s request to read selected portions of a witness’s deposition testimony on rebuttal. Held:

    1. Counsel’s references to fault were really comments on the element of a defect in defendant’s product, a recognized element in a breach of warranty case. Reference to plaintiff’s fault was actually a reference to misuse or abuse of product, a recognized defense in breach of warranty cases. Use of the word "fault” under these circumstances is permissible. Denial of plaintiff’s motion for a mistrial was not an abuse of discretion.
    2. The concept of fault has not been eliminated in breach of warranty cases. Fault is represented by the element' of defect and the fault, supplying a defective product, is the defect. Therefore, plaintiff’s requested curative instruction was not a proper statement of the law. The definition of implied warranty in itself conveys the concept of fault. Refusing to give plaintiffs requested instruction was not error.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trials §§ 234, 259.
    [2] 63 Am Jur 2d Products Liability §§ 91-98.
    [3] 5 Am Jur 2d, Appeal and Error § 810.
    [4] 23 Am Jur 2d, Depositions and Discovery § 104.

      3. Plaintiffs other allegations of instructional error do not merit reversal. A review of the instructions in their entirety shows that the theories of the parties and the applicable law were fairly presented.
    4. There was no abuse of trial court discretion in denying plaintiffs request to read selected portions of a witness’s deposition on rebuttal.
    Affirmed.
    1. Appeal — Motions — Mistrial — Discretion.
    Denial of a motion for a mistrial will not be reversed on appeal unless it is demonstrated that such a denial constituted an abuse of the trial court’s discretion.
    2. Products Liability — Breach of Warranty — Fault — Defects — Defective Products.
    The concept of fault has not been eliminated in breach of warranty cases, it is represented by the element of defect; the fault (supplying a defective product) is the defect.
    3. Appeal — Instructions to Jury — Theories of Parties — Applicable Law — Fair Presentation.
    Jury instructions are considered in their entirety and where the theories of the parties and the applicable law are fairly presented to the jury the Court of Appeals will not find reversible error.
    4. Evidence — Depositions — Admissibility — Rebuttal Testimony — Judicial Discretion.
    The admission of deposition testimony is discretionary and it may be a proper exercise of judicial discretion to refuse to admit selected portions of a witness’s deposition testimony on rebuttal.

      Lakin & Worsham, P.C., and Bruce T. Leitman, P.C., for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by Jeannette A. Paskin), for defendants.
    Before: V. J. Brennan, P.J., and M. F. Cavanagh and Cynar, JJ.
   Per Curiam.

This is a products liability case in which a circuit court jury returned a verdict of no cause of action in favor of defendants. The plaintiff appeals by right, GCR 1963, 806.1.

Plaintiff’s deceased was a supervisor for Chase Company when he was killed by an explosion of propane gas. This gas was supplied by defendant Roland’s Gas and Oil and manufactured by defendant Sun Oil. At the time of the accident, the deceased was working on the construction of a water tower. Pursuant to this project, a large concrete vault was built as a storage tank. After this vault was poured with concrete, the deceased, with two co-workers, lit a plumber’s torch attached to a tank of propane gas and inserted it into the vault to "cure” or dry the cement. The vault was then covered with tarpaulin and weights to keep the tarp in place.

The facts immediately surrounding the explosion were not known. Two of the decedent’s co-workers talked to Flinn prior to the accident when they heard an explosion. They later found his body.

The plaintiff initially claimed both negligence and breach of warranty. She alleged that the propane gas supplied by defendant Roland’s and manufactured by defendant Sun Oil was either unodorized or insufficiently odorized so that it would not be detected in case of leakage. She also alleged that defendant Sun Oil breached its duty to warn decedent of the dangerous properties of propane gas. However, at trial the plaintiff withdrew her negligence claim and proceeded solely under breach of warranty.

The plaintiff raises three issues on appeal. First, the plaintiff asserts that the trial court’s actions of denying plaintiff’s motion for mistrial and refusing to give plaintiff’s requested cautionary instruction after defense counsel’s closing argument were reversible error.

The plaintiff argues that certain remarks by defense counsel injected an element, fault, which was not properly before the jury. The plaintiff reasons that fault is an element of negligence, but since plaintiff’s claim was based on breach of warranty and not negligence, plaintiff did not have to prove fault on behalf of defendant. Plaintiff further argues that the decedent’s fault was not before the jury since, plaintiff reasons, fault connotes negligence and contributory negligence is not a defense to breach of warranty.

The standard of review for a lower court’s denial of a motion for mistrial was stated in People v Denmark, 74 Mich App 402, 415; 254 NW2d 61 (1977):

" 'The trial court’s denial of a motion for a mistrial will not be reversed unless it is demonstrated that such a denial constituted an abuse of discretion.’ People v Coffman, 45 Mich App 480, 487; 206 NW2d 795 (1973).”

After reviewing the facts in this case we find that the trial court did not abuse its discretion in denying defendant’s motion for mistrial. Here, it appears that counsel’s references to "fault” were really comments on the element of a "defect” in defendant’s product, a recognized element in a breach of warranty case. Holloway v General Motors Corp, 399 Mich 617, 624-625; 250 NW2d 736 (1977), Kupkowski v Avis Ford, Inc, 395 Mich 155, 160-161; 235 NW2d 324 (1975). Furthermore, the reference to plaintiff’s fault was actually a reference to misuse or abuse of product, a recognized defense in breach of warranty cases and one which was supported by the facts in this case. Barefield v LaSalle Coca-Cola Bottling Co, 370 Mich 1, 5; 120 NW2d 786 (1963), Kujawski v Cohen, 56 Mich App 533; 224 NW2d 908 (1974), lv den 394 Mich 772 (1975).

The plaintiff next argues that the trial court committed reversible error by failing to give a cautionary instruction to the jury "that there is no necessity for any showing of fault on behalf of Sun Oil Company”. The court refused to give this instruction on the ground that "the definition of implied warranty in itself conveys that concept”.

In this case, as stated in Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708, 713; 202 NW2d 727 (1972), lv den 388 Mich 812 (1972), the concept of fault has not been eliminated in breach of warranty cases, it is represented by the element of defect. Defendant’s fault is the defect, supplying a defective product. Accordingly, plaintiff’s requested curative instruction was not a proper statement of the law.

It is also asserted by plaintiff that the trial court committed reversible error by (a) charging the jury regarding the defense of abuse or misuse of product; (b) refusing to charge the jury regarding failure to warn; (c) charging the jury that defendant Sun Oil had a right to rely on its product being used in a reasonable and foreseeable manner; and (d) refusing to give plaintiff’s requested instruction on "customary practice”.

We find, in viewing the charge in its entirety, that the parties’ theories and the applicable law were fairly presented. Berlin v Snyder, 89 Mich App 38; 279 NW2d 322 (1979), Coon v Williams, 4 Mich App 325; 144 NW2d 821 (1966), lv den 378 Mich 752 (1967).

Finally, we find no abuse of discretion in the trial court’s denial of the plaintiff’s request to read selected portions of witness Thomas’s deposition on rebuttal. See Moldovan v Allis Chalmers Manufacturing Co, 83 Mich App 373; 268 NW2d 656 (1978), lv den 406 Mich 916 (1979).

Affirmed. Costs to defendants.


author: Per Curiam. Bashara, J.

text:
    SZOPKO v KINSMAN MARINE TRANSIT COMPANY
    Docket No. 78-2860.
    Submitted January 3, 1980, at Detroit.
    Decided March 5, 1980.
    Leave to appeal applied for.
    Frank J. Szopko brought an action in Wayne Circuit Court against Kinsman Marine Transit Company alleging liability under general admiralty and maritime law for injuries arising out of the unseaworthiness of a vessel. The jury found for plaintiff in the amount of $180,000, but found that plaintiff’s comparative negligence was 95 percent, thus reducing the award to plaintiff to $9,000. After the verdict of the jury was returned and the jury was discharged, plaintiff learned that one of the jurors had engaged in an off-the-record dialogue with the trial judge. Plaintiff filed a motion for mistrial along with supporting affidavits. A hearing was held on the motion, at which time Roman S. Gribbs, J., admitted that he had been approached by the juror one day during the trial after everyone else had departed for home, but Judge Gribbs disputed the characterization of the dialogue contained in the affidavits and asked that plaintiff produce at a subsequent evidentiary hearing the juror in question and plaintiff’s affiants so that the question of the content of the dialogue could be resolved. Plaintiff’s counsel indicated that he would secure the presence of these persons at the scheduled hearing; however, plaintiff’s counsel failed to further pursue the motion for mistrial. Judgment was thereafter entered without the question of the motion for mistrial having been resolved. Plaintiff appeals. Held:

      1. Conversation between a trial judge and a juror which occurs during the course of a trial without the knowledge and outside the presence of counsel for the parties is so frought with the potential for prejudice that a new trial is mandated even if the moving party is unable to show actual prejudice. Given the fact that reversal and remand for a new trial is mandated on the basis that the trial judge admitted that the conversation took place and that counsel were not informed, plaintiffs failure to produce the witnesses at the evidentiary hearing, with the consequential abandonment of the motion for mistrial, did not constitute a waiver of the right to pursue the question on appeal, since the evidentiary hearing would have been a gesture in futility, the content of the conversation being irrelevant to the question of whether a new trial should be ordered.

      References for Points in Headnotes
    [1] 58 Am Jur 2d, New Trial § 51.
    [2] 5 Am Jur 2d, Appeal and Error § 622.
    58 Am Jur 2d, New Trial §§ 16 et seq., 51.
    [3] 58 Am Jur 2d, New Trial §§ 16, 51.

      Reversed and remanded.
    Bashara, J., dissented. He would hold that plaintiffs abandonment of his motion for a mistrial, coupled with plaintiffs failure to provide a sufficient record on appeal, constitutes a waiver of any claim arising out of the judge-juror conversation. He would affirm.
    Opinion of the Court
    1. Trial — Jury — Contact with Jury — Prejudice — New Trial.
    A dialogue between a trial judge and a juror which occurs during the course of trial without the knowledge and outside the presence of counsel for the parties mandates reversal and remand for a new trial even in the absence of a showing of actual prejudice flowing from the dialogue.
    2. Trial — Appeal and Error — Motion for Mistrial — Failure to Pursue Motion — Futile Acts.
    The abandonment of a motion for a mistrial, said motion being based upon a dialogue between the trial judge and a juror, by failing to produce witnesses at a scheduled evidentiary hearing does not waive the right to assert on appeal error arising out of the judge-juror dialogue, since the asserted error is of such serious import that an evidentiary hearing would be a gesture in futility.
    Dissent by Bashara, J.
    3. Appeal and Error — Motions — Mistrial — Failure to Pursue Motion — Record on Appeal — Waiver.

      The failure to continue to pursue a motion for mistrial based upon a judge-juror dialogue which took place during trial, to obtain a ruling on the motion and to provide a sufficient record on appeal constitutes a waiver of any claim arising out of those circumstances in the appeal.

      Leonard C. Jacques, for plaintiff.

      Foster, Meadows & Ballard (by John Arthur Hamilton), and Joseph V. McGovern, for defendant.
    Before: T. M. Burns, P.J., and Bashara and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiff brought an action against the defendant under general admiralty and maritime law, alleging the unseaworthiness of a vessel. A jury found for plaintiff in the sum of $180,000. However, they also found that the percentage of fault and comparative negligence chargeable to plaintiff was 95%. Plaintiff appeals from a judgment awarding him $9,000.

The sole issue raised on appeal is whether a new trial should be granted upon the disclosure by the trial judge that he conversed with a juror without the presence of counsel for either party.

It appears that the trial judge did engage in an off-the-record dialogue with an individual juror during the course of the proceedings. The fact that this dialogue took place did not come to light until after a verdict was reached, and, thereafter, a motion for mistrial was filed.

In Zaitzeff v Raschke, 387 Mich 577; 198 NW2d 309 (1972), the Supreme Court reversed a jury verdict because the judge and court reporter entered the jury room to reread a portion of the trial testimony after the jury had begun its deliberations. The Court reasoned that the formal requirement that prejudice must be shown to warrant reversal under such circumstances was improper since it is difficult to know exactly what took place when the judge entered the jury room. The same reasoning is applicable in the instant situation. The substance of the judge-juror dialogue herein is controverted. The trial judge stated his memory of the conversation on the record. He indicated that the juror merely told him that the juror had been on the same bus with the plaintiff and had seen plaintiff get off and enter a hotel where a friend of the juror’s resided. The judge opined that this revelation was of little impact or effect. However, affidavits provided by the juror in question, an alternate juror and an investigator indicate that the juror’s judgment may have been colored by the reputation of the hotel that he allegedly saw the plaintiff enter.

We find it necessary to reverse this cause. In doing so, we do not find that any prejudice actually inured to the plaintiff’s position, nor do we suggest that there was any bias on the part of the trial judge. The error stems from the strong possibility of prejudice that presented itself. A trial judge simply should not engage in off-the-record discussions with the jury, or individual members thereof, unless counsel are present to protect their clients’ interests.

Furthermore, we do not find that this error was waived by plaintiff’s abandonment of his motion for a mistrial. The chronology of events occurring below precludes such a finding. Plaintiff did not even become aware of the communication until after the jury verdict came in, but before the judgment was entered. Thus, plaintiff could not have brought his mistrial motion at the most opportune time, i.e., after the conversation occurred and while its substance was still fresh in the minds of the parties. If counsel were present, or at least informed of the judge-juror conversation immediately after its occurrence, either counsel could have taken steps to alleviate any prejudice arising therefrom before the trial continued. Such steps might have included: an examination of the jury panel to determine whether the juror in question communicated his opinions to them and, if so, what effect these communications had; a motion to dismiss the individual juror and continue with the remaining jurors as per GCR 1963, 511.1; an immediate motion for a mistrial, or any other legal steps counsel deemed necessary.

However, at the stage plaintiff had to bring his motion, a motion more properly labeled a new trial motion rather than a mistrial motion, any prejudice caused by the improper communication would have done its damage. Our adversarial system, designed to allow for the fullest representation of each party’s interests, would not have been served thereby. Counsel were deprived of information necessary to render an effective and just representation of their clients’ interests.

The colloquy between the court and plaintiff’s counsel, at the time the hearing on plaintiff’s motion for a mistrial was adjourned, indicates the judge recognized his error in not apprising counsel of the conversation immediately. The judge stated:

"It may be that it was error on the part of the Court to listen to the Juror and to fail to report it to Counsel which I intended to do. It was just an oversight frankly. I think it might be harmless error.”

Immediately following this statement, the judge expressed his earnest desire to ascertain the gravity of his error by directly examining plaintiff’s affiants at a subsequent hearing on the mistrial motion. The fact that this subsequent hearing was never held due to plaintiff’s abandonment of his motion for a mistrial should not lessen the impact of the error that occurred. We find this error to be of serious import. Ordinarily, we would remand for a hearing upon plaintiffs new trial motion. However, on the facts of this case, such a remand would be a gesture in futility. There was no record made of the judge-juror dialogue. The hearing, then, would necessarily break down into a consideration of one juror’s word against the other’s and the trial court’s. We cannot authorize such a proceeding.

Reversed and remanded for a new trial.

Bashara, J.

(dissenting). I respectfully dissent. At the hearing on the motion for a mistrial, the court gave the following account of the incident:

"THE COURT: I’ll inform you at this point. The information you have one Juror approaching the Court after the conclusion of the day’s trial was correct to this extent: After everyone had left, he told my Court Reporter that he wanted to tell me something. I asked the Court Reporter to remain, to bring him in and remain in my chambers. He stated the day before he was on a bus and as he was leaving the bus, he noticed the Plaintiff was on the same bus. He departed, heading toward a hotel, the Plaintiff did, and departed heading for his home. I also recall and the Court Reporter can verify this, that he said something to the effect that he had a friend living in the same hotel, but that he had never seen the Plaintiff there and was unaware that that was where the Plaintiff lived. That was the sum and substance of the matter.

"I told him thank you for reporting it and excused him.

"I frankly had intended to inform Counsel the next day of the statement feeling that it was without impact or effect and inadvertently did not do so. I had the Court Reporter search the record to see if I had done so."

The trial judge then stated that he wished to examine the juror and an alternate juror, whose affidavit supporting the juror’s statement was also filed. A date for the next hearing was set, but the plaintiff failed to pursue his motion, and never obtained an evidentiary ruling on the matter.

As the trial judge stated at the hearing, plaintiff’s allegations raise a serious question which, if confirmed, might necessitate a new trial. Fisher v Bernard, 386 Mich 182; 191 NW2d 323 (1971), Cooper v Carr, 161 Mich 405; 126 NW 468 (1910). However, plaintiff was obligated to continue with his motion and to obtain a ruling on the matter in the trial court. The plaintiff also is obligated to provide this Court with a sufficient record from which it can determine whether the trial judge was in error, had the motion been denied. Lemanski v Ford Motor Co, 82 Mich App 244; 266 NW2d 775 (1978), lv den 405 Mich 811 (1979).

The plaintiff’s abandonment of his motion, and his failure to obtain a ruling by the trial court after the judge had scheduled an evidentiary hearing on the matter, amounts to a waiver of the claim, precluding review by this Court. We need take the matter no further.

I would affirm.

       This dialogue was neither transcribed nor recorded.


text:
    DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE v STANDFEST
    Docket No. 78-3545.
    Submitted December 19, 1979, at Detroit.
    Decided March 5, 1980.
    Leave to appeal applied for.
    Defendant, Kathleen Standfest, while operating a pickup truck insured hy plaintiff, Detroit Automobile Inter-Insurance Exchange, was injured in an accident involving an uninsured motorist. Defendant claimed that the uninsured motorist coverage in the policy covering the truck should be “stacked” with the uninsured motorist coverage in the policy covering her automobile, which was also insured by plaintiff. Plaintiff claimed that an exclusionary clause in the insurance policies precluded the "stacking” of coverage under these circumstances. Pursuant to a provision in the policies, the defendant’s claim was submitted to an arbitration panel which held that the uninsured motorist coverage in each policy could be "stacked”, finding the exclusionary clause to be unenforceable because it would produce an unconscionable result. The panel gave to defendant an award which was in excess of the single policy limits but which was within the limits of the two policies if the policy limits of the two policies were "stacked”. Plaintiff filed a motion in circuit court seeking to vacate the arbitration award. The Wayne Circuit Court, Charles Kaufman, J., denied plaintiff’s motion to vacate, confirmed the award and entered judgment on the award. Plaintiff appeals. Held:

    The arbitration panel was within its powers to address the question of whether the exclusionary provision in the no-fault automobile policies should be enforced and in granting an award which included the stacking of coverage. The circuit court, in turn, properly denied the motion to vacate and properly confirmed the award and entered judgment on the award.
    Affirmed.
    References for Points in Headnote
    [1] 5 Am Jur 2d, Arbitration and Award § 90 et seq.

    7 Am Jur 2d, Automobile Insurance § 368.
    Validity and effect of "no-fault” automobile insurance plans. 42 ALR3d 229.

      Insurance — Automobiles — Stacking — Arbitration.
    An arbitration panel does not exceed its power by addressing the question of whether an exclusion in a no-fault automobile insurance policy which prohibits the stacking of uninsured motorist coverage is unconscionable, nor does it exceed its power by holding that such an exclusion was unconscionable, since the law in this area is presently of an unsettled nature.

      Selby, Dickinson, Pike, Mourad & Brandt (by Ronald R. Hanlon), for plaintiff.

      Lopatin, Miller, Bindes, Freedman, Bluestone,' Erlich & Rosen (by Steven G. Silverman), for defendant.
    Before: D. C. Riley, P.J., and R. B. Burns and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Defendant, while operating a pickup truck insured by plaintiff, was injured in an accident involving an uninsured motorist. Defendant was a named insured under the truck’s policy and under another policy issued by plaintiff on defendant’s automobile. Both policies had a maximum uninsured motorist recovery limit of $20,000 and both contained the following exclusions clause:

"The insurance afforded by this coverage does not apply: "(1) to bodily injury to an insured sustained while occupying any automobile, other than an owned automobile, except a non-owned automobile to which there is applicable and available to such insured no insurance similar to that afforded by this coverage”.

Defendant claimed that her insurance coverage should be "stacked” to allow a maximum recovery of $40,000. As provided in the policies, the claim was submitted to an arbitration panel and defendant received an award of $35,000. Plaintiff filed a motion in circuit court seeking to vacate the arbitration award, arguing that the policies’ exclusions clauses limited the company’s liability to $20,000. The circuit court denied plaintiffs motion.

The parties do not dispute that under a literal application of the policies’ exclusions clauses plaintiffs liability is limited to $20,000. Rather their dispute is centered on whether the arbitration panel had the power to reject the exclusions clauses if it found that the application of the clauses would produce an unconscionable result.

An arbitration award will be vacated by the court when an arbitration panel exceeds its powers. GCR 1963, 769.9(1)(c). At the time the arbitration panel made its award to defendant, it was unclear whether the panel had the power to "stack” the insurance coverage. Before the repeal of Michigan’s uninsured motorist statute, MCL 500.3010; MSA 24.13010, Michigan case law required "stacking” of uninsured motorist coverage. Blakeslee v Farm Bureau Mutual Ins Co of Michigan, 388 Mich 464; 201 NW2d 786 (1972), Boettner v State Farm Mutual Ins Co, 388 Mich 482; 201 NW2d 795 (1972). The rationale underlying these decisions was eliminated by the repeal of the uninsured motorist statute and the passage of the Michigan no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. With these events, the Michigan courts were left to contend with the issue of "stacking”; and results of a varying nature have been produced. Leave to appeal has been granted by the Michigan Supreme Court in two cases which discuss this issue, and a definitive answer is now near. State Farm Mutual Automobile Ins Co v Davidson (Docket No. 29626, decided July 25, 1977, [unreported]), lv gtd 402 Mich 950q (1978), Fletcher v Aetna Casualty & Surety Co, 80 Mich App 439; 264 NW2d 19 (1978), lv gtd 402 Mich 950s (1978).

Due to the unsettled nature of the Michigan law at the time of the arbitration award it was impossible for the arbitration panel to know with certainty whether it did or did not have the power to reject the application of the policies’ exclusions clauses. The arbitrators chose to exercise that power and their choice can be supported by case law. See, e.g., Fletcher, supra. Under these circumstances, we agree with the circuit court that the arbitration award should not be vacated.

Affirmed.


text:
    McMILLAN v DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
    Docket No. 78-3557.
    Submitted December 12, 1979, at Detroit.
    Decided March 5, 1980.
    Tamara McMillan, a minor, was injured in an automobile accident. Patricia McMillan, her mother, obtained an arbitration award, on behalf of herself and her daughter, against the Detroit Automobile Inter-Insurance Exchange (DAIIE) under the provisions of two insurance policies. The award was certified in the Wayne Circuit Court. DAIIE appealed the decision of the court refusing to modify the award, alleging that the award was based on the improper stacking of the two policies. Patricia McMillan obtained a writ of garnishment in the Oakland ' Circuit Court against certain assets of DAIIE. Upon motion of DAIIE, the Oakland Circuit Court, Francis X. O’Brien, J., quashed the writ in an ex parte order, holding that the proffering of the two policies stayed the proceedings pending appeal. Mrs. McMillan appeals. Held:

    The statutory provision for a stay, without bond, of proceedings pending appeal for "insured liability” requires 1) the deposit of a copy of the policy with the court, 2) admission of liability under the policy, and 3) agreement to pay the judgment against the insured as it may be affirmed on appeal and does not apply to appeals by an insurer of judgments against it, directly, upon policies of insurance.
    Reversed.
    Appeal and Error — Stay of Proceedings Pending Appeal — Insurance — Statutes.
    The statutory provision for a stay, without bond, of proceedings pending appeal for "insured liability” requires 1) the deposit of a copy of the policy with the court, 2) admission of liability under the policy, and 3) agreement to pay the judgment against the insured as it may be affirmed on appeal and does not apply to appeals by an insurer of judgments against it, directly, upon policies of insurance (MCL 500.3036; MSA 24.13036).

      References for Points in Headnote
    [1] 44 Am Jur 2d, Insurance § 1537.
    Liability insurer’s duty to pay injured person as affected by appeal or grant of new trial, from judgment against insured, or by the fact that time for appeal or for new trial has not. expired. 31 ALR3d 899.

      William L. Fisher, for plaintiff.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   Per Curiam.

Plaintiffs obtained a writ of garnishment on the defendant’s assets in Oakland County while the defendant appealed a decision of the Wayne County Circuit Court refusing to modify an arbitration award. Upon motion by the defendant, the writ was quashed ex parte. Upon rehearing, the Oakland County Circuit Court refused to rescind that order. Plaintiffs appeal as of right.

Under GCR 1963, 808.1, the initiation of the appellate process does not operate as a stay of execution unless and until a bond is filed. A statutory exception to the bond requirement is provided in MCL 500.3036; MSA 24.13036, which permits an appellant to file an insurance policy if the liability is one that is "insured against”. Defendant insurer in the present case utilized this provision and filed two insurance policies in lieu of bond. We find that the statute is inapplicable to the defendant.

The language of MCL 500.3036; MSA 24.13036, provides that:

"When an appeal is taken from a judgment in a case where it appears to the court that all or a part of the particular liability of the appellant is insured against by a surety company or insurance carrier authorized to do business in this state, and the court is satisfied of the coverage of the policy or suretyship, the court shall not require the appellant to provide an appeal bond or bond to stay execution pending an appeal up to the amount of the coverage of the policy or suretyship. The insurance carrier or surety company may be required by the court and is given authority to execute its written recognizance to the opposite party or parties for the payment of the taxable costs of the appeal. The surety company or insurance carrier shall deposit with the court a copy of the insurance policy or bond and shall admit its liability thereunder, and agree to pay a judgment against its insured, if any, as shall be affirmed by the appellate court, but not exceeding the amount of the liability under the policy or bond; and the court having jurisdiction thereof, on its own motion, may enter judgment against the surety company or carrier without further proceedings. If the amount of judgment exceeds the amount of coverage of the policy or surety-ship, the court shall grant a stay of execution upon the filing of a bond by the appellant for the difference.”

Therefore, under this provision, no bond is required if the insurer (1) deposits with the court a copy of the policy, (2) admits its liability under the policy, and (3) agrees to pay such judgment against the insured as may be affirmed by the appellate court. 2 Michigan Law & Practice, Appeal, § 158, p 26.

The issue here, however, is whether or not an insurance company fits within the class of "appellants” designated by the statute.

The wording of the statute itself defines the scope of its applicability. The statute provides that no bond need be filed whenever the "liability of the appellant is insured against by * * * [an] insurance carrier”. The insurance company is the "appellant” for purposes of this statute, so that its liability must be insured against. Clearly, the defendant’s liability does not meet the requirements of the statute. The defendant is primarily liable on those policies, and the statute applies only to those parties whose liability is insured against. Merely because an insurance policy is involved in the case at hand, one cannot automatically conclude that the statute is applicable when the statutory language speaks otherwise. A plain reading of the statute indicates that the defendant does not fit within its scope.

A review of the limited number of cases that have discussed MCL 500.3036; MSA 24.13036, or its predecessor, MCL 522.33a; MSA 24.297, also suggests that the defendant insurer is not a proper party to utilize the statutory provision. In deciding upon the constitutionality of MCL 500.3036; MSA 24.13036, the Supreme Court examined the limits of the provision’s applicability in Wolodzko v Wayne Circuit Judge, 382 Mich 528; 170 NW2d 9 (1969). The Court stated that:

"Section 3036 designates a class of appellants which, by the fact of purchase and maintenance of liability insurance, or of having obtained a qualifying bond (of suretyship), is entitled to employ such insurance (or bond) for the purpose of staying proceedings on appeal.” 382 Mich 528, 531.

An insurance company does not fit within this class of appellants. The defendant is primarily liable on the insurance policies so that its liability is not "insured against”. The defendant did not purchase or maintain the insurance policies that it attempted to utilize in lieu of bond.

Based on the explicit language of the statute, the defendant does not fit within its scope. We find that the trial court’s interpretation of MCL 500.3036; MSA 24.13036, is not in accord with its plain meaning. The lower court erred in denying the plaintiffs’ motion to vacate the quashing of the writ of garnishment.

The decision of the circuit court is reversed. Costs to plaintiffs.

       Although not necessary to our decision herein, we note that while the defendant has filed copies of the policies with the court, there has been no admission of liability thereunder. On the contrary, defendant is appealing the arbitration award on the basis that the final award was improperly stacked. Although the defendant stated at the hearing on July 25, 1978, that the statutory requirements had been met because liability under the policies had been admitted, this cannot possibly hold for the second insurance policy which the defendant claims has been wrongfully considered. In the appeal in Wayne County, defendant is contesting, not admitting, the liability under the second insurance policy. Therefore, if the statute were applicable to the defendant, the insurer still should have filed a bond to the extent of the $40,000 judgment in excess of the amount of the first uncontested insurance policy of $20,000.


text:
    PEOPLE v PARKER
    Docket No. 78-4174.
    Submitted December 11, 1979, at Detroit.
    Decided March 5, 1980.
    Defendant, Gregory D. Parker, was convicted of first-degree criminal sexual conduct and armed robbery in the Recorder’s Court of Detroit, Samuel C. Gardner, J. Defendant appeals, alleging error in the court’s allowing evidence of a prior conviction for assault with intent to rob while armed to be used to impeach him in the event he testified. Held:

    The Court of Appeals, when reviewing a decision of a trial court to admit evidence of a witness’s prior convictions for purposes of impeachment, must determine whether the trial court recognized that it had the discretion to deny admission of the evidence and, if so, whether admission of the evidence would be an abuse of that discretion. A trial court did not abuse its discretion in allowing impeachment of a defendant by the use of evidence of a prior conviction where the conviction was for a crime similar to the one charged, defense counsel agreed to its admission in the event defendant testified, and defendant did testify and made only one reference to his prior conviction on direct examination.
    Affirmed.
    1. Criminal Law — Evidence — Witnesses — Prior Convictions — Impeachment — Rules op Evidence.
    Evidence that a witness has previously been convicted of a crime may, in the discretion of the trial court, be admitted for the purpose of impeaching the witness where the conviction was for a felony and where the trial court determines that the probative value of the evidence outweighs its prejudicial effect (MRE 609[a]).
    References for Points in Headnotes
    [1] Permissibility of impeaching credibility of witness by showing former conviction, as affected by pendency of appeal from conviction or motion for new trial. 16 ALR3d 726.
    [2, 3] 5 Am Jur 2d, Appeal and Error § 772 et seq.

    81 Am Jur 2d, Witnesses § 569.

      2. Appeal and Error — Criminal Law — Evidence — Witnesses — Prior Convictions — Judicial Discretion.
    The Court of Appeals, when reviewing the decision of a trial court to admit evidence of a witness’s prior convictions for purposes of impeachment, must determine whether the trial court recognized that it had the discretion to deny admission of the evidence and, if so, whether admission of the evidence would be an abuse of that discretion.
    3. Appeal and Error — Criminal Law — Evidence — Witnesses — Prior Convictions — Judicial Discretion.
    A trial court did not abuse its discretion in allowing impeachment of a defendant by the use of evidence of a prior conviction where the conviction was for a crime similar to the one charged, defense counsel agreed to its admission in the event defendant testified, and defendant did testify and made only one reference to his prior conviction on direct examination.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
    State Appellate Defender Office (by Daniel J. Wright and Mardi Crawford), for defendant on appeal.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   Per Curiam.

Defendant was charged with, and convicted of, first-degree criminal sexual conduct, MCL 750.520b(1); MSA 28.788(2)0), and armed robbery, MCL 750.529; MSA 28.797. He claims this appeal by right.

We have reviewed the record and conclude that only one of the five issues raised by defendant need be addressed. That is, whether or not the trial court erred reversibly in permitting evidence of defendant’s prior conviction of assault with intent to rob while being armed to be used for purposes of impeachment. We find that it did not.

The complaining witness testified that defendant sprayed something in her face as she exited from her car, told her that he would stab her with a knife if she were not quiet, took $12 from her wallet, then had her drive them to a secluded spot where he raped her after a struggle. Defendant denied having taken any money and testified that the complainant consented to intercourse. Defendant’s wallet was recovered from the complainant’s car, and he was arrested at his boarding house that same night with $12 and a nail file found in the clothes he was reportedly wearing.

Following the prescribed test for review of the present issue, we note that the trial court recognized its discretion in this matter on the record. People v Worden, 91 Mich App 666, 674; 284 NW2d 159 (1979). The evidence admitted was a 1971 conviction for assault with intent to rob while being armed to which defendant plead guilty. While that offense was similar to one of the crimes for which defendant was being tried, it was not identical, and any resultant prejudice does not approach the level noted in People v Worden, supra, 678. An impressive factor in our review is that defense counsel agreed to the admission of evidence of defendant’s prior conviction if defendant chose to testify. Defendant did testify at trial and made only one reference to his conviction on direct examination. Thus, it appears that there was no problem with defendant’s foregoing the act of testifying due to fear of impeachment, nor was there any alternative means of impeaching him under the given circumstances. People v Jones, 92 Mich App 100, 110-111; 284 NW2d 501 (1979). Consideration of all of these factors convinces us that the trial court did not abuse its discretion in this matter.

Affirmed.

P. C. Elliott, J. concurs in the result only.


text:
    PEOPLE v SHIRLEY JOHNSON
    Docket No. 78-4881.
    Submitted December 5, 1979, at Grand Rapids.
    Decided March 5, 1980.
    Shirley Johnson, while serving a sentence at a community corrections center for a prior conviction, was convicted of larceny in a building and sentenced to a term of two to four years to be served consecutively with her sentence on the other conviction, Kalamazoo Circuit Court, C. H. Mullen, J. Defendant appeals. On appeal, defendant contends that she was not incarcerated at the time the larceny was committed and that the consecutive sentence was erroneous. Held:

      A prisoner who is incarcerated in a penal or reformatory institution and who commits a crime during that incarceration which is punishable by imprisonment is subject to a mandatory consecutive sentence with the new sentence to commence at the expiration of the term of the sentence which the person is already serving. A community corrections center is a prison for purposes of the consecutive sentencing statute. Therefore, defendant was incarcerated and a prisoner when the larceny was committed. The trial court’s consecutive sentencing was proper. Because defendant was serving a prison sentence arising from a prior crime and received a consecutive sentence she is not entitled to sentence credit for the time spent in jail between arraignment and sentencing.
    Affirmed.
    1. Criminal Law — Prisoners — Crime During Incarceration — Sentences — Consecutive Sentences — Statutes.
    A statute provides for mandatory consecutive sentences for offenses committed by a prisoner who is incarcerated in a penal or reformatory institution and who commits a crime during that incarceration which is punishable by imprisonment in a penal or reformatory institution in this state (MCL 768.7a; MSA 28.1030[1]).
    References for Points in Headnotes
    [1, 3, 4] 21 Am Jur 2d, Criminal Law § 547.
    [2] 73 Am Jur 2d, Statutes §§ 187-190, 305, 332.
    [3] 60 Am Jur 2d, Penal and Correctional Institutions § 1.

      2. Criminal Law — Escape — Statutes — Statutory Construction — In Pari Materia.
    Statutes relating to the samé subject or having the same general purpose should be construed to be in pari materia; therefore, the statute which deals with prison escape may be read in pari materia with the provisions of the statute dealing with escape from a penal or reformatory institution (MCL 750.193, 768.7a; MSA 28.390, 28.1030[1]).
    3. Criminal Law — Sentences — Prisoners — Community Corrections Center — Crime During Incarceration.
    A community corrections center is a prison for purposes of the escape statute; a person who is serving a sentence at the center is incarcerated and if he commits a crime while serving his time he is subject to a mandatory consecutive sentence (MCL 768.7a; MSA 28.1030[1]).
    4. Criminal Law — Sentences — Sentence Credit — Subsequent Crimes — Consecutive Sentences.
    A defendant who is serving a prison sentence arising from a prior conviction is not entitled to sentence credit for the time spent in jail between the time of arraignment and sentencing on a subsequent crime where the second sentence is consecutive.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Judy A. Hughes, Appellate Attorney, for the people.

      James R. Durant, for defendant on appeal.
    Before: Bronson, P.J., and Allen and R. M. Maher, JJ.
   Per Curiam.

The defendant appeals as of right from a plea-based conviction of larceny in a building, MCL 750.360; MSA 28.592. She was sentenced to a term of 2 to 4 years in prison, to be served consecutively with her sentence on a prior conviction.

The instant charge stems from an incident which occurred while the defendant was serving a sentence at a community corrections center program. Ms. Johnson was on her way to a laundromat to do her wash. She stopped at the Family Foods market. Although she had sufficient money, she took laundry detergent worth less than $3 and put it in her purse, not intending to pay for it. Ms. Johnson was apprehended before she left the store.

On appeal, the defendant contends that she was not "incarcerated” at the time the instant crime was committed, so that the consecutive sentencing statute, MCL 768.7a; MSA 28.1030(1), was erroneously applied.

MCL 768.7a; MSA 28.1030(1) provides for mandatory consecutive sentences for offenses committed by a prisoner or an escapee, as follows:

"Sec. 7a. (1) A person who is * * * incarcerated in a penal or reformatory institution in this state, or who escapes from that institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction thereof, be subject to sentence therefor in the manner provided by law for such crimes. The term of sentence imposed for the crime shall * * * commence * * * at the expiration of the term or terms of sentence which the person is serving or * * * has become liable to serve in a penal or reformatory institution in this state.”

There are no cases which specifically construe a community corrections program as being a penal or reformatory institution within the ambit of this statute. However, statutes relating to the same subject or having the same general purpose should be construed to be in pari materia. Wayne County v Dep’t of Social Welfare, 343 Mich 475, 479; 72 NW2d 200 (1955). Thus, the statute which deals with prison escape, MCL 750.193; MSA 28.390, may be read in pari materia with the provisions of MCL 768.7a; MSA 28.1030(1). Section 2 of the escape statute, which has since been amended to include a community residential center, defines a "prison” as follows:

"(2) The word "prison” as used in this section shall include any Michigan state prison, penitentiary, reformatory, state house of correction, camp constructed and maintained under the provisions of Act No. 274 of the Public Acts of 1949, as amended, being section 798.351 of the Compiled Laws of 1948, or any penal camp, except probation camps or probation recovery camps, and shall further include the grounds, farms, shops, road camps or places of employment operated by such institution or under control of the officers thereof, or the department of corrections, or of any police officers of this state, or of other persons authorized by the department to have prison inmates under their care, custody or supervision, either in an institution or outside an institution, whether for the purpose of work or medical care or otherwise.”

In People v Strong, 53 Mich App 620; 219 NW2d 804 (1974), a YMCA corrections program was found to be a prison for purposes of the escape statute. In People v Smith (On Rehearing), 89 Mich App 478; 280 NW2d 862 (1979), a hospital was held to be within the scope of the escape statute. It would subvert legislative intent if we were to hold that the defendant herein was in a noncustodial setting at the time of the charged crime. A similar conclusion was reached in the recent case of People v Mayes, 95 Mich App 188; 290 NW2d 119 (1980), which held that consecutive sentences were appropriate where the defendant committed a crime while in a community halfway program.

Since we have upheld the appropriateness of the trial court’s consecutive sentencing, the defendant is not entitled to sentence credit for the time spent in jail between the time of arraignment and sentencing. People v Patterson, 392 Mich 83; 219 NW2d 31 (1974), and People v Chandler, 59 Mich App 656; 230 NW2d 16 (1975).

Affirmed.

       The amended version of MCL 750.193(2); MSA 28.390(2) provides:
      "(2) * * * 'Prison’ as used in this section means a state prison, penitentiary, reformatory, state house of correction, community residential center either operated or leased by the department of corrections, a camp constructed and maintained under * * * Act No. 274 of the Public Acts of 1949, * * * being section 798.351 of the Michigan Compiled Laws * * ”, or a penal camp, except a probation camp or probation recovery camp, and includes the grounds, farm, shop, road camp, or place of employment operated by the institution or under control of the officers of the institution, * * * the department of corrections, * * * a police officer of this state, or any other person authorized by the department to have a prison inmate under * * * care, custody, or supervision, either in an institution or outside an institution, whether for the purpose of work, * * * medical care, or any other reason. ” (Emphasis added.)
      We feel that the amended definition represents a clarification rather than a departure from the previous enactment.


text:
    PEOPLE v LUSTER
    Docket Nos. 78-4990, 78-4991.
    Submitted January 9, 1980, at Detroit.
    Decided March 5, 1980.
    Defendant, Will Henry Luster, was convicted, on his pleas of guilty, of two counts each of armed robbery and felony-firearm arising out of separate incidents but pled to on the same day. He was sentenced by the Wayne Circuit Court, Richard D. Dunn, J., to two concurrent 10 to 25 year sentences for the armed robberies and to a mandatory five year term as a second felony-firearm offender. Defendant appeals. Held:

    1. Multiple convictions arising out of separate incidents pled to on the same day may serve as the basis for subsequent-offender convictions under the felony-firearm statute.
    2. Conviction of both armed robbery and felony-firearm does not violate the provision against double jeopardy.
    Affirmed.
    1. Criminal Law — Felony-Firearm Statute — Multiple Convictions — Statutes.
    Multiple convictions arising out of separate incidents pled to on the same day may serve as the basis for subsequent-offender convictions under the felony-firearm statute (MCL 750.227b; MSA 28.424[2]).
    2. Robbery — Armed Robbery — Double Jeopardy — Felony-Firearm.
    Conviction of both armed robbery and felony-firearm does not violate the provision against double jeopardy.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan,
      Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and William Morris and Timothy Scallen, Assistants Prosecuting Attorney, for the people.

      References for Points in Headnotes
    [1] 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 6 et seq.

    Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statutes. 24 ALR2d 1247.
    [2] 21 Am Jur 2d, Criminal Law §§ 8, 182 et seq.

      State Appellate Defender Office (by Mardi Crawford and Marshall S. Redman), for defendant on appeal.
    Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   Per Curiam.

Defendant entered a plea of guilty in Wayne Circuit Court case #78-819921-FR for armed robbery, MCL 750.529; MSA 28.797, and. felony firearm, MCL 750.227b; MSA 28.424(2). At the same time, he also entered a plea of guilty in case #78-820267-FR to armed robbery and felony-firearm. These charges arose out of separate incidents. Defendant was sentenced to concurrent sentences of 10 to 25 years for armed robbery and to a mandatory five-year term as a second offender under the felony-firearm statute. Defendant appeals as of right.

Defendant contends that he should not be subject to the five-year mandatory term as a second offender for felony-firearm because both pleas were taken on the same day. The pertinent portion of the statute, MCL 750.227b; MSA 28.424(2), provides:

"Sec. 227b. (1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.”

The defendant was charged with and stood convicted of two separate violations of felony-firearm, and so became subject to the five-year mandatory term. The fact that his pleas were entered on the same day does not alter the result which the legislature plainly intended. See People v Barrett, 93 Mich App 808; 287 NW2d 348 (1979), and People v Willis, 95 Mich App 32; 290 NW2d 82 (1980).

The defendant’s argument that conviction of armed robbery and felony-firearm violates the provision against double jeopardy is without merit. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Affirmed.

       We disagree with footnote 3 of People v Barrett, supra, which concludes that a ten-year sentence for "a third or subsequent conviction” can only be imposed if that third conviction "follows or succeeds” the former, i.e., that it must occur at a later time. This is a tortured reading of a plainly-stated, straightforward legislative directive: that one who has a third, fourth, fifth, sixth, etc. conviction is subject to a mandatory ten-year term. Thus, had defendant entered a plea to three separate charges of felony-firearm at the same time, the trial court would have been required to impose a ten-year sentence under MCL 750.227b; MSA 28.424(2).


text:
    LEAVESLY v CITY OF DETROIT
    Docket No. 78-5318.
    Submitted December 12, 1979, at Detroit.
    Decided March 5, 1980.
    Leave to appeal applied for.
    William Leavesly fell from a Detroit city bus. He brought a negligence action against the City of Detroit Department of Street Railways. A jury returned a verdict of $175,000 for plaintiff. Judgment on the verdict was entered by Wayne Circuit Court, Ricardo J. Lubienski, J. Defendant appeals. On appeal, defendant alleges that the trial court committed reversible error in allowing plaintiff to testify over objection that he suffered a fractured rib and a fractured vertebra in his fall. Held:

    A lay witness has a right to testify to something he knows and that does not require expert testimony to establish. A fractured vertebra is an injury that is out of the course of general information and experience and involves medical knowledge beyond that of ordinary unprofessional persons. Plaintiffs uncorroborated testimony that he had a fractured vertebra went beyond his experience and qualifications.
    Reversed and remanded.
    1. Witnesses — Evidence — Lay Witnesses — Qualifications — Expert Witnesses.
    A lay witness has a right to testify to something he knows and that does not require expert testimony to establish.
    2. Witnesses — Evidence — Lay Witnesses — Scope of Testimony — Expert Witnesses — Medical Knowledge.
    A lay witness cannot testify as to whether or not a person has suffered a fractured vertebra because this type of injury is • something that is out of the course of general information and experience and involves medical knowledge beyond that of ordinary unprofessional persons.
    Reference for Points in Headnotes
    [1, 2] 31 Am Jur 2d, Expert and Opinion Evidence §§ 14, 15, 24, 25.

      Levin & Ungar, for plaintiff.

      George G. Matish, Acting Corporation Counsel, and William Dietrich and Marion R. Jenkins, Assistants Corporation Counsel, for defendant.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   Per Curiam.

Defendant City of Detroit appeals by right from a jury award of $175,000 in a negligence action instituted by plaintiff after his fall from a city bus.

Defendant claims that the trial court committed reversible error in allowing plaintiff to testify that he suffered a fractured rib and a fractured vertebra in his fall. Counsel for defendant moved in limine to disallow the introduction of any such evidence. The trial court denied the motion after defense counsel was unable to present authority contrary to plaintiffs reliance upon Gibson v Traver, 328 Mich 698; 44 NW2d 834 (1950).

Plaintiffs case consisted solely of the testimony of plaintiff. Counsel for plaintiff asked plaintiff what was wrong with his ribs as a result of the fall. Defense counsel objected that the question was beyond the competency of the plaintiff to answer because he was not a doctor. The trial judge responded, "Let’s hear the answer”, and plaintiff stated, "I fractured the rib”. Defense counsel renewed his objection. Plaintiff’s counsel then inquired about plaintiffs back and plaintiff replied, "I fractured a vertebra”. Defense counsel’s repeated objection was overruled again on the basis of Gibson, supra, but defense counsel insisted that that case should not apply inasmuch as plaintiff s alleged fractures were not the type that one could observe. Continuing with the direct examination, plaintiff was asked to demonstrate where, in his back, the vertebra was fractured, and plaintiff stated, "I would say about the third vertebra up from the bottom”. Objection was raised once again on the previous stated grounds.

In Gibson, supra, 702, with regard to a plaintiffs uncorroborated testimony that he had broken his collarbone, our Supreme Court stated that, "Plaintiff had a right to testify to something he knew, and that did not require expert testimony to establish”. That same ruling was pronounced 75 years earlier in a more elaborate fashion as follows:

"We think there is no rule which can prevent ordinary witnesses from describing what they see, or from testifying concerning the kind of injury or sickness of others whom they have had occasion to consort with, unless it is something out of the common course of general information and experience, or unless the question presented involves medical knowledge beyond that of ordinary unprofessional persons.” Elliott v Van Buren, 33 Mich 49, 54-55; 20 Am Rep 668 (1875).

We believe that plaintiffs alleged injuries in the present case fall outside of the confines of this rule. Whether or not one has suffered a fractured vertebra is certainly a question which involves medical knowledge beyond that of ordinary unprofessional persons. MRE 601. This conclusion is especially warranted here in light of the fact that there was absolutely no other evidence, expert or not, beyond that assertion by plaintiff to substantiate his claimed injuries. The impropriety of the trial court’s ruling is further buttressed by its later contrary ruling on a similar question. Plaintiff was asked by his counsel whether or not his back had subsequently healed and plaintiff declared that it was not healed at any time because it was a fractured vertebra. This time, the court sustained defense counsel’s objection that the witness was incompetent to so testify on grounds that it constituted a conclusion. Ironically, when defense counsel queried plaintiff if he knew whether or not he had arthritis, counsel for plaintiff objected that, "That’s something if a person knows he only knows if the doctor tells him”. One final consideration in our decision is that when the plaintiff was earlier deposed he was asked what was the problem with his back just after the accident. He testified that, "The problem was with the disc in my spine”. Plaintiff made no claim of a fractured vertebra during that deposition, which serves only to increase the possibility that plaintiff did not know whether or not he had a fractured vertebra.

To the extent that Gibson, supra, provides authority for a lay witness to testify concerning his broken bones, and we ask the Supreme Court to reconsider its validity, we distinguish it from the present case because we find that a broken collarbone may well be subject to a layman’s observation whereas a fractured vertebra in all likelihood would not. See Evans v The People, 12 Mich 27, 33-36 (1863). Furthermore, the circumstances surrounding the alleged fracture in Gibson, supra, were not disclosed, and for all we know, if proof of that fracture did not require expert testimony, it may have been because it was a compound fracture that was readily obvious to the untrained eye.

For these reasons, we find the admission of this evidence to be error and reverse and remand for a new trial. Costs to defendant.


text:
    PEOPLE v BROOKS
    Docket No. 77-930.
    Submitted November 13, 1979, at Detroit.
    Decided January 10, 1980.
    Leave to appeal denied, 409 Mich 880.
    Donald Brooks was convicted of carrying a concealed weapon, Recorder’s Court of Detroit, Justin C. Ravitz, J. Defendant appealed, and the Court of Appeals ordered an evidentiary hearing on the issue of the prosecution’s failure to produce a res gestae witness. The hearing was held, and the Court of Appeals reviewed the case. Held:

    The prosecutor neither indorsed nor produced the res gestae witness. The defendant did not move for a hearing on the issue during or following trial. However, implicit in the Court of Appeals’ order for a post-trial hearing is a finding that, absent the hearing, manifest injustice would result. The record reveals a lack of due diligence on the part of the prosecution to attempt to produce the witness. The witness had told police at the scene of the arrest that the police had arrested the wrong man. Testimony to that effect at trial would have made the defendant’s case more credible; therefore, the failure to produce the witness resulted in manifest injustice.
    Reversed and remanded.
    1. Witnesses — Res Gestae Witnesses — Criminal Law — Statutes.
    Persons present at the scene of a crime are presumed to be res gestae witnesses; the prosecutor is required to indorse all such persons’ names known to him on the information and to produce those witnesses at trial (MCL 767.40; MSA 28.980).
    2. Witnesses — Res Gestae Witnesses — Criminal Law — Nonproduction of Witnesses — Preserving Issue.
    Failure of a defendant to move in the trial court for a hearing during trial or for a new trial on the issue of the prosecutor’s failure to indorse or produce a res gestae witness precludes consideration of the issue on appeal unless, absent review, manifest injustice would result.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 180, 723, 724.
    41 Am Jur 2d, Indictments and Informations §§ 56, 60.
    63 Am Jur 2d, Prosecuting Attorneys § 27.
    81 Am Jur 2d, Witnesses § 2.
    [2] 41 Am Jur 2d, Indictments and Informations §§ 56, 60.
    58 Am Jur 2d, New Trial § 41.
    [3] 58 Am Jur 2d, New Trial §§ 40, 41.

      3. Witnesses — Res Gestae Witnesses — Criminal Law — Due Diligence — Manifest Injustice.
    A defendant is entitled to a new trial upon a finding that the prosecution failed to use due diligence in attempting to produce a res gestae witness and that because of the witness’s nonproduction the defendant suffered manifest injustice. ■

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

      Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: Bronson, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   Per Curiam.

Defendant was convicted of carrying a concealed weapon contrary to MCL 750.227; MSA 28.424, and was sentenced to 2-1/2 to 5 years in prison on January 5, 1977. In an order dated February 14, 1978, this Court granted defendant’s motion for an evidentiary hearing on plaintiffs failure to produce a res gestae witness, Derrick Cooper. Pursuant to this order, the trial court made factual findings from which we can conclude that the witness’s nonproduction at trial impaired defendant’s rights. Accordingly, we reverse.

At the time of defendant’s arrest, Cooper told police that they had arrested the wrong man. He gave his driver’s license to the police as identification, but the officers incorrectly recorded his address. The record discloses no efforts by police to locate this witness prior to trial, other than the dispatching of an officer to the wrong address and the checking of police files for a past record.

Defendant asserts that the failure to endorse and produce the alleged res gestae witness, Derrick Cooper, was reversible error. Persons present at the scene of a crime are presumed to be res gestae witnesses able to testify regarding their observations. People v Abdo, 81 Mich App 635, 642-644; 265 NW2d 779 (1978), People v Hicks, 63 Mich App 595, 597; 234 NW2d 720 (1975). Prosecutors are required to endorse all such persons’ names on the information, MCL 767.40; MSA 28.980, and to produce these witnesses at trial. See People v Hammack, 63 Mich App 87; 234 NW2d 415 (1975). However, if the prosecutor does not comply, it is the defendant’s responsibility to move for a hearing during trial or for a new trial prior to seeking appellate review. People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). The failure to move for either will normally foreclose this issue on appeal, People v Pearson, 404 Mich 698, 722; 273 NW2d 856 (1979), unless, absent review, manifest injustice will result. People v Phillips, 75 Mich App 690, 694; 255 NW2d 733 (1977).

The instant defendant never moved for a hearing on the issue of Cooper’s endorsement or production during or following trial. Thus, implicit in this Court’s order for the post-trial hearing was a finding that, absent the evidentiary proceeding, manifest injustice would result.

According to the dictates of Robinson, supra, 634, on remand, a prosecutor must explain why he failed to endorse and produce a particular witness. Normally, a trial court will then determine whether these efforts meet the standard of "due diligence”. See People v Ebejer, 66 Mich App 333; 239 NW2d 604 (1976).

In the instant case, this determination has been reserved for this Court. Based on a careful review of the record, we conclude that the police did not exercise due diligence in locating Derrick Cooper prior to trial. After failing to find the address listed for that witness, the investigating officer neglected to make inquiries of neighbors, possible employers or the post office. Above all, no effort was made to check with the Secretary of State’s office, although the police had first-hand knowledge that the witness had a driver’s license. By contrast, after the hearing order from this Court, the police diligently investigated several leads to locate the witness and were ultimately successful. The officer’s initial efforts fall far short of "due diligence” and cannot be excused. See People v McIntosh, 389 Mich 82; 204 NW2d 135 (1973), People v Tees, 386 Mich 483; 192 NW2d 241 (1971), People v Starr, 89 Mich App 342; 280 NW2d 519 (1979), People v Hunter, 48 Mich App 497; 210 NW2d 884 (1973).

Once the lack of due diligence is established, the court must determine if the defendant suffered manifest injustice based on the witness’s nonproduction. See Phillips, supra. These deficiencies will entitle the defendant to a new trial. See People v Hernandez, 84 Mich App 1, 17; 269 NW2d 322 (1978), People v King, 50 Mich App 487, 491; 213 NW2d 597 (1973).

We conclude that manifest injustice resulted at trial when witness Cooper was not produced. Only two officers testified against the defendant and neither could offer direct proof of his guilt. Although defendant proffered the testimony of a friend who stated that defendant was not carrying a gun at the arrest scene, defendant’s case would have been far more credible if supported by the corroborative testimony of the disinterested witness Cooper.

The fact that the prosecution failed even to endorse Cooper on the information as a res gestae witness highlights the negligence with which the state conducted this case. Insufficient effort was expended to locate Cooper, despite the full spectrum of resources available to the prosecution. The prosecution must now bear the consequences of its inattention.

Reversed and remanded for a new trial.

       This analysis corresponds to the order of inquiry as established in People v Pearson, 404 Mich 698; 273 NW2d 856 (1979), which was handed down by the Supreme Court after the evidentiary hearing was conducted in the instant case. Initially, the court must ascertain whether the prosecution has been duly diligent in producing the res gestae witness. If a lack of due diligence is found, then the court must determine if the defendant was prejudiced by the prosecution’s failure to produce the witness at trial. Pearson, supra, 722-723. Under this standard too, we feel that defendant must be accorded a new trial.


text:
    PEOPLE v PENA
    Docket No. 78-1927.
    Submitted December 18, 1979, at Detroit.
    Decided January 16, 1980.
    Jesus Z. Pena was convicted of armed robbery, St. Clair Circuit Court, Halford I. Streeter, J. At trial defendant claimed he did not have the requisite specific intent to commit the crime because he was intoxicated from alcohol and mescaline. Defendant testified that he had never robbed anyone before. On cross-examination he denied committing a prior robbery in 1974. The prosecution called two rebuttal witnesses. Their testimony indicated that defendant used his car to drop them off at the time of the prior robbery and picked them up after the robbery and that he received some proceeds of that robbery. Both denied that defendant participated in that robbery and there was no testimony that defendant knew that a robbery was going to be or had been committed. Defendant appeals by leave granted. Held:

    1. There was a lack of substantial evidence to show that defendant committed the prior robbery; therefore, admission of the rebuttal testimony was error because it did not tend to disprove defendant’s statement that he never robbed anyone before.
    2. It was error to allow the prosecutor to refresh the memory of one of the rebuttal witnesses, when that witness denied that his memory needed refreshing. Furthermore, the prosecutor could not have impeached that witness with a prior inconsistent statement because the witness was a prosecution witness, was not a hostile witness and one whom the prosecutor had no obligation to call.
    3. The errors were not harmless beyond a reasonable doubt because they affected the credibility of defendant’s contention that he lacked the specific intent to commit the crime.
    Reversed and remanded.
    References for Points in Headnotes
    [1] 81 Am Jur 2d, Witnesses § 612 et seq.

    [2] 81 Am Jur 2d, Witnesses §§ 438, 443.
    [3] 81 Am Jur 2d, Witnesses § 619 et seq.

      1. Witnesses — Evidence — Contradictory Evidence — Admissibility.
    Generally, the only type of contradictory evidence that is admissible is that which directly tends to disprove the exact testimony given by a witness.
    2. Witnesses — Criminal Law — Recollection — Refreshing Recollection.
    A prosecutor is not allowed to refresh the memory of a witness where the witness denied that his memory needs refreshing.
    3. Witnesses — Criminal Law — Impeachment — Prior Inconsistent Statements.
    Generally, a party may not impeach his own witness; a prosecution witness, who the prosecutor had no obligation to call, cannot be impeached with a prior inconsistent statement.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      Susan J. Smith, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. C. Riley, P.J., and R. B. Burns and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797. Thereafter sentenced to a prison term of 15 to 40 years, defendant appeals following this Court’s grant of a motion for delayed appeal.

At trial defendant claimed he did not have the requisite specific intent to commit the crime of robbery because he was so intoxicated from alcohol and mescaline. To this end, defendant testified that he had never robbed anyone before. On cross-examination, defendant denied committing a prior robbery on September 18, 1974, with his brother Robert Puente and Lee Lerma. The prosecution called Robert Puente and Lee Lerma in rebuttal. Their testimony indicated that defendant dropped them off in his car before the September 18, 1974, robbery and picked them up afterwards, and that defendant received some of the proceeds of the robbery, but both denied that defendant participated in said robbery. Also, there was no testimony that defendant knew that a robbery was going to be or had been committed.

Admission of this testimony was error because it did not tend to directly disprove defendant’s statement. People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974). Substantial evidence that defendant committed the prior robbery was lacking. People v Davis, 343 Mich 348; 72 NW2d 269 (1955), People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978).

Additionally it was error to allow the prosecutor to "refresh” the memory of Robert Puente when Puente denied that his memory needed refreshing. Battle Creek Food Co v Kirkland, 298 Mich 515, 527; 299 NW 167 (1941). The prosecutor could not have impeached Puente with a prior inconsistent statement, since Puente was the prosecutor’s witness, whom the prosecutor had no obligation to call. People v White, 401 Mich 482; 257 NW2d 912 (1977). Puente was not a hostile witness, as the prosecutor could hardly have been surprised when defendant’s brother, who had already testified for defendant, declined to implicate defendant in a prior robbery. People v White, supra. Nor are these errors harmless beyond a reasonable doubt. They affected the credibility of defendant’s contention that he lacked the specific intent to commit the crime.

Resolution of the foregoing being dispositive, discussion of appellant’s remaining allegations of error is rendered unnecessary. Moreover, we find same to be without merit.

Reversed and remanded for a new trial.