People v. Robinson , 391 Mich. 555 ( 1974 )

391 Mich. 555 (1974) 218 N.W.2d 1

PEOPLE
v.
ROBINSON

No. 2 October Term 1973, Docket No. 54,762.

Supreme Court of Michigan.

Decided May 21, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office (by Judith K. Munger), for defendant on appeal.

M.S. COLEMAN, J.

Upon order of this Court dated December 18, 1973, the instant matter was remanded to Recorder's Court for the City of Detroit for an evidentiary hearing, 390 Mich 629; 213 NW2d 106.

Specifically, the order read as follows:

"In order to prevent what might possibly be a useless new trial, but also in order to avoid a possible miscarriage of justice, we retain jurisdiction and remand to the trial court pursuant to GCR 1963, 865.1(5). It shall be the obligation of the judge to require the prosecutor to produce or explain why he cannot produce Eugene Smith at such hearing and why he was not indorsed and produced at the trial. If Eugene Smith is produced he shall be examined regarding his knowledge of the crime of which the defendant was convicted.

"At the conclusion of the remand hearing, the trial judge shall take such action as he deems required. If a new trial is not ordered, the trial judge shall state his findings and the transcript of that hearing and the judge's statements shall be forwarded to this Court. Defendant may file a supplemental brief within 30 days and the people within 20 days after receipt of the defendant's brief."

Eugene Smith was produced at the required evidentiary hearing on February 11, 1974 and the judge drew the following factual conclusions from the testimony therein:

"1. That the alleged res gestae Smith was at or near the door of the bar in question immediately prior to the fatal shooting [sic];

"2. That he did not see the stabbing occur;

"3. That he could not or would not offer any testimony at a re-trial of this cause which would differ in any material respects from that adduced at the first trial."

A new trial was not ordered. The transcripts and findings have been duly filed but no additional briefs were forthcoming. The respective parties have in writing stated their intention to file no supplemental briefs, counsel for the defendant having outlined a considerable but unsuccessful effort to produce and present additional arguments on behalf of Mr. Robinson.

Consistent with the findings of the trial court, the decision of the Court of Appeals is affirmed.

T.M. KAVANAGH, C.J., and T.G. KAVANAGH, SWAINSON, WILLIAMS, and LEVIN, JJ., concurred with M.S. COLEMAN, J.

J.W. FITZGERALD, J., did not sit in this case.