Opinion
Docket No. 51196.
Decided March 4, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people.
Lippitt, Harrison, Perlove, Friedman, Zack Whitefield (by John J. Goldpaugh), for defendant.
Before: M.F. CAVANAGH, P.J., and ALLEN and MacKENZIE, JJ.
Defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and sentenced to 25 to 40 years imprisonment. He appeals as of right.
The complainant, who was 71 years old at the time of the incident, testified that on June 17, 1979, she and her husband were walking to church when they were approached from behind by two persons. Complainant and her husband were pushed to the ground and complaint's hands were injured as a result of the fall. One of the assailants grabbed complainant's pocketbook and the two men ran away. Complainant did not see the faces of the attackers nor did she see a stick.
Officer Magdeleno Diaz of the Detroit Police Department testified that he was in church when, through a window, he observed defendant Halliburton hit complainant's husband on the head with a three-foot long stick. He also testified that he saw codefendant McCadney push complainant to the ground and bend down near her. At that point, the officer exited from the church and chased after the two assailants. At some point during the chase, Officer Diaz commandeered a vehicle from a citizen, P.J. Boekhout. The officer continued the chase in the car and eventually caught and arrested defendant and codefendant.
Mr. Boekhout, the man whose car was commandeered by the officer, was not endorsed or called as a witness, even though, according to Officer Diaz's testimony, defendant had run directly past Mr. Boekhout with the officer in hot pursuit some 35 yards behind.
Neither counsel for defendant nor for codefendant moved for endorsement or production of Mr. Boekhout as a res gestae witness. However, prior to closing argument, the trial court ruled that Mr. Boekhout was a res gestae witness. The jury was instructed to determine whether plaintiff had failed to exercise due diligence in the production of the witness and that, if they found a lack of due diligence, they could infer that the missing witness's testimony would have been unfavorable to the prosecutor's case.
Following the conviction, defendant filed a claim of appeal and this Court, by an order dated November 14, 1980, remanded to the trial court for a post-conviction proceeding to determine whether prejudice resulted from the failure to produce Mr. Boekhout. Following the hearing, the trial court found no prejudice and denied defendant's motion for new trial. Defendant appeals from the final order of the court.
Defendant contends that Mr. Boekhout's testimony at the post-remand hearing establishes that defendant was prejudiced by the nonproduction of the witness at trial. We agree.
In People v Pearson, 404 Mich. 698, 725-726; 273 N.W.2d 856 (1979), the Supreme Court announced the following standard for assessing whether defendant actually suffered any prejudice:
"At either a post-remand hearing or a Robinson [ 390 Mich. 629; 213 N.W.2d 106 (1973)] hearing, we would have the trial court assess whether the defendant actually suffered any prejudice and fashion appropriate remedies. The burden should be on the prosecution to establish that its failure to exercise due diligence in the production of a res gestae witness did not adversely affect the defendant's right to a fair trial (i.e., the defendant is presumed prejudiced until the contrary is established). If the prosecution can establish that the missing testimony would have been of no assistance to the defendant, that it merely constitutes cumulative evidence, that its absence constitutes harmless error or that the witness could not have been produced at trial, then this burden has been met and the conviction should be affirmed. A failure to meet this burden should result in a new trial." (Footnotes omitted.)
The trial court's decision of whether the nonproduction of a res gestae witness is prejudicial will not be overturned by this Court absent a clear abuse of discretion. People v Donald, 103 Mich. App. 613, 616; 303 N.W.2d 247 (1981).
Mr. Boekhout's testimony at the post-remand hearing was inconsistent with the account given by the officer at trial. While the officer testified that he was in hot pursuit as defendant ran directly past Mr. Boekhout, Mr. Boekhout stated that he saw no one run past. This and other significant discrepancies preclude a finding that nonproduction of the witness would have been of no assistance to defendant. We believe Mr. Boekhout's testimony would have been crucial in aiding the jury to assess the credibility of the prosecution's key witness.
Concerning another allegation of error put forth by the defendant, we conclude that all of the elements of armed robbery were presented sufficiently to warrant a charge of armed robbery. MCL 750.529; MSA 28.797. Testimony at trial established that defendant and his codefendant (not a part of this appeal) approached complainant from behind and pushed her to the ground; this constituted an assault. The taking of complainant's purse constituted the felonious taking of property which might be the subject of larceny from the complainant or her presence. Finally, the stick which was used to strike complainant's husband was used as a dangerous weapon in furtherance of the unlawful taking. It is irrelevant that it was not the complainant who was the victim of the blow with the stick. There was an assault and unlawful taking of property which might have been the subject of larceny from the complainant by one armed with a dangerous weapon. People v McGuire, 39 Mich. App. 308; 197 N.W.2d 469 (1972), lv den 387 Mich. 810 (1972).
Reversed and remanded.