Opinion
Docket No. 46519.
Decided November 7, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Joseph G. Wetzel, Assistant Prosecuting Attorney, for the people.
Bender Thompson, for defendant.
Before: D.C. RILEY, P.J., and N.J. KAUFMAN and MacKENZIE, JJ.
Defendant was convicted by a jury in Macomb County Circuit Court on June 16, 1978, of carrying a weapon in a motor vehicle occupied and operated by him, in violation of MCL 750.227; MSA 28.424. On October 27, 1978, he was sentenced to serve a term of two to five years in prison. Defendant appeals as of right, pursuant to GCR 1963, 806.1.
During the early morning hours of November 20, 1977, defendant was driving northbound on Gratiot Avenue near Twelve Mile Road in Macomb County. A friend of the defendant, David Norton, accompanied him. Norton was sitting on the passenger side of the front seat of defendant's automobile.
While stopped for a traffic light, defendant and Norton encountered four young men who were riding in two vehicles. These four young men were all friends, and they were also driving northbound on Gratiot. In response to a remark made by Norton, one of the young men held up his middle finger at Norton. After the traffic light changed to green, the three vehicles all continued northbound on Gratiot. As one of these vehicles approached defendant's car, Norton placed a 20-gauge sawed-off shotgun out of the open window on the passenger side and aimed it at the other vehicle. A car chase ensued down some side streets. A police cruiser which happened to be in the area pulled up to the three vehicles after they had stopped. Defendant and Norton were arrested at the scene and the sawed-off shotgun was taken from defendant's vehicle. Defendant was charged under the concealed weapons statute, MCL 750.227; MSA 28.424; Norton was charged with felonious assault, MCL 750.82; MSA 28.277.
Following his conviction, defendant moved for a new trial arguing, inter alia, that his conviction should be reversed due to the prosecutor's failure to indorse and produce Norton as a res gestae witness at his trial. The trial judge denied the motion on the ground that Norton was an accomplice of the defendant.
While it is true that the prosecution is under a general duty to indorse and produce all res gestae witnesses, MCL 767.40; MSA 28.980, People v Carter, 87 Mich. App. 778; 276 N.W.2d 493 (1979), this rule is not without exceptions. A prosecutor is obligated to neither indorse nor produce persons who are accomplices of the defendant. People v Raider, 256 Mich. 131; 239 N.W. 387 (1931), People v Benton, 402 Mich. 47, 58; 260 N.W.2d 77 (1977).
In People v Raider, the Supreme Court stated the rationale for the exceptions to the res gestae rule:
"Obviously the exceptions were founded upon the recognized inclination or inducement of those close to the accused, by community of interest in the crime or relationship, to perjure themselves, if they deem it necessary, in his behalf, and the incongruity of requiring the prosecution to make such witnesses its own." 256 Mich. 131, 135-136.
The key question, then, is whether Norton was defendant's accomplice. A person may be treated as an accomplice for purposes of the res gestae rule even though never formally charged or convicted, provided that he or she could have been charged with the same offense as the defendant. People v Threlkeld, 47 Mich. App. 691, 696; 209 N.W.2d 852 (1973). Each case must be judged according to its own facts. Id. Since Norton clearly could have been charged under the concealed weapons statute, MCL 750.227; MSA 28.424, he would be deemed an accomplice under Threlkeld whether or not he had ever been formally charged at all. This case, however, does not fall neatly within the Threlkeld rule, since Norton was, in fact, formally charged with felonious assault, MCL 750.82; MSA 28.277, an offense different from that charged against defendant. The question before us is whether the fact that Norton was charged under a different criminal statute than defendant should act to place him outside the scope of the accomplice exception.
In People v Moore, 29 Mich. App. 597; 185 N.W.2d 834 (1971), this Court was faced with the question of whether an accomplice should be made a res gestae witness once the charges are dropped. Concluding that such a witness need not be called, the Court stated:
"The reasons for the exception to the general rule apply with equal force whether or not the witness has been charged, and whether or not the action, if any, against him is still pending." Moore, supra, 601.
This observation is equally true in the instant matter. Even though an accomplice in a criminal episode is charged with an offense different from that charged against the defendant, the "community of interest" and the resulting inducement for perjury noted by the Supreme Court in Raider, supra, still remain. Furthermore, by limiting the applicability of the accomplice exception to situations where the "accomplice" is either charged with the same offense as the defendant or not charged at all, as in Threlkeld, we would be needlessly and adversely limiting the prosecutor's broad discretion in charging criminal defendants.
For these reasons, we hold that even though Norton was charged with a different criminal offense, he was still defendant's accomplice for purposes of the res gestae rule since he could have been charged with the same offense as the defendant. Therefore, the prosecution was under no duty to either indorse or produce Norton at defendant's trial.
With respect to defendant's claim that his conviction was based on an improper pyramiding of inferences, our careful review of the record convinces us that no such error occurred at his trial.
Affirmed.