Opinion
Docket No. 30350.
Decided September 3, 1980. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Chari Grove, Assistant State Appellate Defender, for defendant on appeal.
Defendant appeals his conviction of armed robbery, MCL 750.529; MSA 28.797, claiming error in denial of adjournment, permitting unendorsed witnesses to testify on rebuttal and instructional coercion. Defendant was first brought to trial in September of 1975. His trial resulted in a mistrial. On the day defendant's second trial was scheduled to commence, defendant's newly retained counsel requested an adjournment so that a transcript of the first trial could be made. The trial court denied counsel's request. We find no error.
A request for an adjournment is addressed to the sound discretion of the trial court, which will not be reversed unless that discretion is abused. People v Shuey, 63 Mich. App. 666; 234 N.W.2d 754 (1975), People v Parker, 76 Mich. App. 432; 257 N.W.2d 109 (1977). Those factors which must be carefully balanced by the trial court are: (1) the origin and nature of the right asserted; (2) the defendant's reasons for asserting the right; (3) the defendant's negligence or untimely assertion of the right; and (4) the extent to which previous delays or disruptions are attributable to the defendant. People v Eddington, 77 Mich. App. 177; 258 N.W.2d 183 (1977), lv den 402 Mich. 944 (1978).
In considering these factors in the case at bar, there is no indication that the trial court abused its discretion. Defense counsel was tardy in requesting a transcript of the mistrial. Moreover, defendant has not established that any prejudice resulted from not having a transcript of this mistrial. People v Hill, 88 Mich. App. 50; 276 N.W.2d 512 (1979). In slightly different terms, there was no "good cause" to justify the expense and inconvenience of an adjournment. See MCL 768.2; MSA 28.1025 and GCR 1963, 503.1. Once all of the component pieces of a trial finally come together, adjournment of the trial is no trivial matter.
Defendant next alleges that the prosecuting attorney improperly split his case before the jury and that the trial court erred in permitting the prosecutor to introduce certain testimony during rebuttal. The prosecutor sought to endorse at the close of his proofs two witnesses who had been in a hallway adjacent to the apartment in which the robbery took place. These witnesses observed the defendant depart from the scene. The witnesses were present at the trial and were offered to the defense for side bar interviews. The trial court denied the prosecutor's request as untimely. Defendant took the stand in his own behalf and testified that he was not present in the area where the robbery occurred. The trial court then allowed the prosecutor to admit the testimony of the two witnesses to rebut defendant's assertion that he was not in the area. We find no error.
In People v Ejeber, 66 Mich. App. 333, 340-341; 239 N.W.2d 604 (1976), this Court aptly summarized the law in this area:
"Legitimate rebuttal testimony is limited to the refutation or impeachment of relevant and material evidence properly raised by the opposing party. People v Bennett, 393 Mich. 445; 224 N.W.2d 840 (1975), 1 Gillespie, Michigan Criminal Law Procedure, 2d ed, ¶ 407, pp 493-494. Ordinarily a prosecutor is prohibited from calling a rebuttal witness to offer testimony which should have been received in his case in chief. People v Quick, 58 Mich. 321; 25 N.W. 302 (1885). It is still the rule, however, that the decision as to `whether evidence which could have been offered before resting may be given in rebuttal is a matter within the discretion of the trial court'. People v Utter, 217 Mich. 74; 185 N.W. 830 (1921)."
In People v McGillen #1, 392 Mich. 251, 268; 220 N.W.2d 677 (1974), the Supreme Court stated:
"Generally, the only type of contradictory evidence that is admissible is that which directly tends to disprove the exact testimony given by a witness."
In this case, the testimony of the prosecutor's rebuttal witnesses tended to disprove the defendant's assertion that he was not at the scene of the robbery. Moreover, the prosecutor had attempted to endorse these witnesses so that they might testify in the prosecutor's case in chief. Contra, People v Beck, 96 Mich. App. 633 ; 293 N.W.2d 657 (1980). In the circumstances of this case, we conclude that no reversible error occurred. People v Tocco, 60 Mich. App. 130; 230 N.W.2d 341 (1975), lv den 395 Mich. 822 (1975).
Defendant lastly alleges that the jury's verdict was coerced by the following part of the original instruction:
"And in your deliberations you should listen to each other with an open mind and your final verdict should be unanimous; that is, it will have to be agreed upon by all of you."
We do not view this instruction as coercive. It is informational and not designed to cause a juror "to abandon his conscientious dissent and defer to the majority". People v Goldsmith, 94 Mich. App. 155, 159; 288 N.W.2d 372 (1979). See also, People v Sullivan, 392 Mich. 324; 220 N.W.2d 441 (1974).
Affirmed.