Opinion
Docket No. 23977.
Decided March 24, 1976.
Appeal from Recorder's Court of Detroit, George W. Crockett, Jr., J. Submitted October 11, 1975, at Detroit. (Docket No. 23977.) Decided March 24, 1976.
Terry Staples was convicted of receiving and concealing stolen property over the value of $100. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people. Waterman Campbell, P.C. (by Joseph D. Walton), for defendant on appeal.
Before: BRONSON, P.J., and BASHARA and M.F. CAVANAGH, JJ.
Defendant appeals from a bench trial and conviction of receiving and concealing stolen property over the value of $100, contrary to MCLA 750.535; MSA 28.803.
At trial Detroit police officer Henry testified that he stopped a 1972 Thunderbird automobile at 4 a.m. for speeding. When defendant could not produce a registration, the officer noticed that although the car motor was running there were no keys in the ignition. A passenger, one Tony Washington, was ordered to exit from the automobile and further investigation revealed that the glove box had been forced open. Defendant could not produce the ignition key upon request, although he stated that he had the key.
Testimony was adduced from the owner of the automobile that it had been stolen shortly before defendant was apprehended. It was further shown the ignition key was in the possession of the owner.
Defendant testified that Tony Washington picked him up at his house at 3 a.m. The defendant claimed that he did not initially notice that the ignition key was missing because the engine was running and Washington was driving. Within one block Washington requested the defendant to drive. Places were exchanged while the engine remained on. The defendant stated that he still had not noticed the lack of an ignition key. Defendant explained that he only realized that the car was stolen just prior to being stopped by the police.
The first issue raised on appeal is that there was insufficient evidence to sustain the trial court's finding of defendant's guilt. Defendant particularly claims lack of evidence showing guilty knowledge. However, guilty knowledge may be inferred from facts and circumstances brought out at trial. People v Blackwell, 61 Mich. App. 236; 232 N.W.2d 368 (1975). Defendant's possession of recently stolen goods, coupled with the damaged ignition and his false statement that he had the key are sufficient to find guilty knowledge. People v Tantenella, 212 Mich. 614; 180 N.W. 474 (1920), People v White, 22 Mich. App. 65; 176 N.W.2d 723 (1970).
Defendant also contends that reversible error resulted from the trial court's failure to require production of indorsed witness Tony Washington. We need not dwell on this issue since People v Robinson, 390 Mich. 629; 213 N.W.2d 106 (1973), precludes appellate review unless a motion for new trial raising the question is made in the trial court. It is true that a delayed motion for new trial was made and denied in the trial court. However, the sole issue raised there was the sufficiency of the evidence. We find this contention to be without merit.
Affirmed.
I agree with Judge BASHARA that the conviction should be affirmed and that a retrial is not necessary. But I do not agree that the issue of the prosecutor's failure to produce an indorsed witness was not preserved for appeal. When defendant objects at trial and a hearing is had on the issue of due diligence or cumulativeness, the requirements of Robinson are met. People v Jones, 65 Mich. App. 619; 237 N.W.2d 584 (1975).
However, remand is not necessary. The record supports the conclusion that the trial court ruled in defendant's favor on the due diligence issue and drew the inference that the witness's testimony would have been unfavorable to the prosecutor's case. See People v Barker, 18 Mich. App. 544; 171 N.W.2d 574 (1969).
I cannot agree with the majority's conclusion that the issue of the prosecutor's failure to produce the indorsed witness, Tony Washington, was not preserved for appeal. When defendant objects at trial and evidence is taken, the Robinson requirements are met. People v Jones, 65 Mich. App. 619; 237 N.W.2d 584 (1975). Those circumstances were present here, and there was no need for defendant to make an additional motion for a new trial.
We need not decide whether Tony Washington was in fact a res gestae witness. The prosecutor's voluntary indorsement of Tony Washington carries with it the attendant burden of exercising due diligence in obtaining the presence of that witness at trial, People v Mitchell, 48 Mich. App. 361; 210 N.W.2d 509 (1973). The record here indicates that the prosecutor did not sustain that burden. The police served a subpoena upon Washington's mother, but admitted that such service was probably ineffective. The only other effort made to locate the witness was to send a scout car to his house the day of trial. This Court has found efforts substantially similar to those to be insufficient. See People v Eugene Harris, 43 Mich. App. 531, 536-538; 204 N.W.2d 549 (1972).
Although a lack of due diligence has been found, no reversible error results if the testimony of the missing witness would be merely cumulative, People v Kimble, 60 Mich. App. 690, 696; 233 N.W.2d 26 (1975). There is certainly nothing on the record to indicate that Washington's testimony could be classified as such. Although Tony Washington could not directly testify as to defendant's knowledge that the car was stolen, he could certainly have observed actions consistent with lack of knowledge. He was also the only person who could verify defendant's story as to why he was driving the stolen automobile. However, to avoid the possibility of a useless retrial, I vote to follow the remand remedy set forth in People v James, 51 Mich. App. 777, 784-785; 216 N.W.2d 473 (1974), to more fully explore the cumulativeness issue.