Opinion
Docket No. 78-3423.
Decided November 6, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Nels L. Olson, Assistant Prosecuting Attorney, for the people. Robert E. Slameka, for defendant on appeal.
Before: N.J. KAUFMAN, P.J., and R.M. MAHER and D.C. RILEY, JJ.
Defendant was charged with and convicted of unlawful delivery of a controlled substance, heroin, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a), and sentenced to 1 year in prison. Defendant's motion for a new trial, based on the same issues raised here, was denied on August 14, 1978. He appeals as of right, claiming (1) that the prosecutor failed to produce res gestae witnesses and (2) that a search warrant obtained and executed seven days after the delivery at issue was based on stale information.
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 N.W.2d 779 (1978), People v Hicks, 63 Mich. App. 595, 597; 234 N.W.2d 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 N.W.2d 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 N.W.2d 106 (1973).
In the case sub judice, although defendant most likely was aware of the several persons in his apartment at the time of the heroin delivery, he did not raise the production issue at trial. However, he did move for a new trial at the trial's conclusion, properly perfecting the issue for appeal under the authority of Robinson, supra. Although defendant complied with preservation procedure, we find on the merits that witness presentation was excused under an established exception to the production rule.
"`Where the identity of the res gestae witness is made known to the defendant during or before trial and defendant does not move for endorsement or production of the witness [presentation is excused].'" People v Hernandez, 84 Mich. App. 1, 14; 269 N.W.2d 322 (1978), quoting People v Buero, 59 Mich. App. 670, 674-675; 229 N.W.2d 880 (1975).
Defendant presumably knew the identity of the persons in his apartment, but failed to disclose this information to the prosecution or move for the production of the witnesses during trial. See Hernandez, supra. Whether this defendant actually delivered the heroin was never actually contested. Nor was there any question of identity. Any testimony that the witnesses could have given would not likely have affected the trial's outcome. Therefore, we find that the prosecutor's failure to produce was, at most, harmless and reversal on this basis is unnecessary. See Hernandez, supra, People v Phillips, 75 Mich. App. 690; 255 N.W.2d 733 (1977), People v Bennett, 68 Mich. App. 446; 243 N.W.2d 15 (1976).
In cases like the present, where only the defendant is aware of the witnesses' identity, we are persuaded that the prosecutor is excused from endorsement and production by People v Buero, 59 Mich. App. 670; 229 N.W.2d 880 (1975). However, the Buero exception does not relieve the prosecutor of his duty to endorse res gestae witnesses of whose identity he is aware, without the necessity of a motion to endorse by defendant. See People v Reynolds, 93 Mich. App. 516; 286 N.W.2d 898.
Defendant further seeks reversal on the ground that the search warrant, obtained and executed seven days after the heroin delivery at issue, was based on stale information. There is authority for the quashing of a warrant based on outdated probable cause. People v Siemieniec, 368 Mich. 405; 118 N.W.2d 430 (1962). However, as with the witness issue, the present defendant failed to object at trial. In fact, defense counsel specifically denied that the search would be challenged as illegal or improper. Thus, on the facts of this case we conclude that defendant effectively waived his right to challenge the search warrant.
Assuming, arguendo, that a post-trial motion for a new trial effectively preserved defendant's appellate rights on the search warrant issue, we conclude that the warrant was not stale. It is well-settled that probable cause supporting the search warrant must exist at the time of its issuance. Sgro v United States, 287 U.S. 206, 210; 53 S Ct 138; 77 L Ed 260 (1932). The lapse of time between the circumstances underlying the warrant and the warrant's execution does not automatically indicate staleness. United States v Townsend, 394 F. Supp. 736 (ED Mich, 1975).
"There is no hard and fast rule as to how much time may intervene between the obtaining of the facts and the making of the affidavit upon which the search warrant is based" People v Mushlock, 226 Mich. 600; 198 N.W. 203 (1924).
Certainly the passage of time is a consideration in judging a search warrant's vitality. See People v Willis, 243 Mich. 164; 219 N.W. 609 (1928), People v Mayes, 78 Mich. App. 618; 261 N.W.2d 22 (1977), People v Gould, 61 Mich. App. 614; 233 N.W.2d 109 (1975). One must look to the history of criminal activity involved; in a pattern of violations the lapse of time is less critical. Townsend, supra, at 744. Also necessary to consider is whether any supplemental information has been received to confirm the basic information supporting the warrant. See United States v Harris, 403 U.S. 573; 91 S Ct 2075; 29 L Ed 2d 723 (1971). In the final analysis, the measure of a search warrant's staleness rests not on whether there is recent information to confirm that a crime is being committed, but whether probable cause is sufficiently fresh to presume that the sought items remain on the premises. Townsend, supra, at 745.
In the instant case, the record reveals that the first delivery on January 10, 1978, which forms the basis of defendant's conviction, was not an isolated occurrence. There was a second delivery on January 16, 1978, attested to in the affidavit accompanying the search warrant and in testimony at trial. Thus, although there were seven days between the original information and the search warrant of January 17th, there was corroborative information obtained just 24 hours before the warrant's issuance. We cannot then say that the search warrant was stale.
We conclude that both of defendant's arguments on appeal are without merit. Accordingly, his conviction is affirmed.