PEOPLE v. BETTS
155 Mich. App. 478 (1986)
400 N.W.2d 650
Docket No. 84492.
Michigan Court of Appeals.
Decided October 20, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people.
Warren H. Siegel, for defendant on appeal.
Before: CYNAR, P.J., and WAHLS and E.E. BORRADAILE,* JJ.
In a bench trial in Detroit Recorder's Court, defendant was found guilty of felonious assault by means of a shotgun as a result of an incident on March 23, 1984. The complainant went to his brother's house with a wrecker to tow a disabled car away and, after he crawled out from under the car and was hooking up the wrecker, he heard defendant swearing at him and also saw defendant in defendant's doorway on the porch with a shotgun, which was racked and pointed at the complainant.
Defendant testified that the complainant had pulled the tow truck up into his driveway and he believed that the complainant was trying to take what turned out to be the complainant's brother's car. He claimed the complainant swore at him and made what appeared to be a threatening gesture, so he grabbed a shotgun but denied pointing it at the complainant.
The issue in this case arises as a result of the trial court's indicating, after the testimony had been presented by both parties, that it wanted to question a witness, Anita Turner, who had earlier been waived by the parties but who had been listed as a res gestae witness. The court allowed the prosecutor to reopen the case because there were two conflicting versions of the testimony and the court did not know what to believe. The case was continued for a few days to allow the witness to be brought in and, at that time, defense counsel objected to the trial court's calling of the witness, stating that both parties had already rested and that the witness was not indorsed on the information. Defendant further claimed complete surprise.
The trial court permitted defense counsel to have a recess to talk to the witness if he had not already had the opportunity to do so.
The witness was called and testified that, on the morning in question, she heard people swearing and looked out the window. She saw two men standing by a tow truck, and the man on the passenger side was talking to someone in front of him, but she could not see who it was. She came downstairs then and went out the door, acting like she was getting the mail. At this point, she saw defendant on the porch with a rifle, so she ran to the telephone to call the police.
On November 1, 1984, the trial court found defendant guilty of felonious assault and, on December 11, 1984, sentenced defendant to five years probation, with the first year in a halfway house. Defendant appeals as of right.
Defendant claims that the trial court committed prejudicial and reversible error in calling a res gestae witness after both sides had rested when the court was not convinced beyond a reasonable doubt as to the guilt of the defendant, but does not seem to raise a constitutional question. The prosecutor argues that, under MRE 614, a trial court is permitted to call and interrogate witnesses.