Opinion
Docket No. 7327.
Decided March 30, 1971.
Appeal from Recorder's Court of Detroit, Robert J. Colombo, J. Submitted Division 1 October 13, 1970, at Detroit. (Docket No. 7327.) Decided March 30, 1971.
James King was convicted of armed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
David Harris, for defendant on appeal.
Defendant was found guilty by a jury of armed robbery and was sentenced to a term of 15 to 20 years in prison. On appeal he contends that reversible error was committed by the failure of the prosecution to produce at trial an indorsed res gestae witness, prejudicial identification procedures, denial to trial counsel of time to confer with the attorney present at the lineup, and by an additional charge being given to the jury after they had been deliberating for some time.
MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797).
Kenneth Baker, stock boy in the grocery store at the time of the robbery, was a witness to the crime and was indorsed as a res gestae witness. By indorsing the name of a witness on the information the prosecutor becomes duty bound to produce him at the trial. The prosecutor may be excused from producing the witness if he shows due diligence in attempting to produce him, People v. Kern (1967), 6 Mich. App. 406; People v. Zabijak (1938), 285 Mich. 164. The record in this case clearly shows that a letter addressed to Kenneth Baker at his last known address was returned to the police department by the postal authorities with an indication that Kenneth Baker had moved from his last known address. Thereafter the police contacted the postal authorities and were informed that there was no forwarding address; the postman on the route stated that he had no knowledge of a forwarding address; the mother of Kenneth Baker was contacted and she indicated that her son was not residing at their home, but was staying with his grandmother; a visit by the police was made to the address of the grandmother but they received no response; and school authorities had no record of Kenneth Baker. While the trial court did not explicitly rule that due diligence had been shown by the prosecutor, it is clear from the record that reasonable efforts to locate the witness had been made by the prosecution and such a ruling should have been made. Thus, in accordance with the powers granted to this Court by GCR 1963, 820.1(7) we so hold. We note further from the record that defense counsel was aware of the witness being absent, and yet at the time of the instructions by the court made no objection as required by GCR 1963, 516.2. Thus, it is clear that defense was satisfied that reasonable efforts had been made to locate the missing witness. We find no error.
The complainant was called to police headquarters on three occasions to look at photographs. She identified defendant first from his picture and then in a lineup. Pretrial identification is proper and will be set aside only if found to be so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377 ( 88 S Ct 967, 19 L Ed 2d 1247). The record discloses that the identification procedures were not suggestive and that the in-court identification was based on complainant's own recollections independent of photographs or lineup.
Defendant next charges that it was error for the trial court to refuse to stop proceedings so that defense counsel could confer with the attorney present at the lineup. Counsel was aware that a lineup had been held and should have known that an attorney was present. United States v. Wade (1967), 388 U.S. 218 ( 87 S Ct 1926, 18 L Ed 2d 1149). Failure to confer with the lineup attorney prior to trial was counsel's own negligence and a continuance was properly refused. GCR 1963, 503.1.
Finally, defendant assigns as error the giving of the following instruction after the jury had been deliberating for some time:
"Members of the jury, it appears that you are having some difficulty in arriving at a verdict in this case. I would remind you and each and every one of you, that you took an oath to fairly and impartially hear this case and render your judgment thereon.
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"I have no way of knowing how you are guided or where you are in the deliberations of this case, but I would say this to you in conferring together you ought to pay proper respect to each other's opinion and to each other's argument.
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"In order to bring twelve minds to a unanimous result, you must examine the evidence submitted to you with fairness and proper regard in deference to the opinion of others as well as to your duty as jurors to fairly decide this case."
Here, as in People v. Maxwell (1966), 3 Mich. App. 264, 268:
"A fair reading of this colloquy convinces us that it was a reasonable interrogation of the jury designed to obtain a considered verdict rather than to force a hasty one. See People v. Pizzino (1945), 313 Mich. 97, and People v. Kasem (1925), 230 Mich. 278."
Affirmed.